SPEECH 


HON.  JAMES  H.  BIRCH, 

OF  MISSOURI, 

IN  THE  HOUSE  OF  REPRESENTATIVES.  JANUARY  8.  1868. 

* 


The  House  having  under  consideration  the  report 
of  the  Committee  of  Elections  in  the  contested-elec¬ 
tion  case  from  the  sixth  congressional  district  of 
Missouri —  • 

Mr.  BIRCH  (contestant)  spoke  as  follows: 

Mr.  Speaker:  I  will  proceed,  under  the 
courtesy  which  has  been  extended  to  me  by 
the  House,  to  address  myself  at  once  to  the 
great  questions  that  are  involved  in  the  report 
that  has  been  made  by  the  Committee  of  Elec¬ 
tions  in  this  case  ;  and  as  I  shall  not  put  it 
upon  the  ground  first  remarked  upon  by  the 
distinguished  author  of  the  report,  but  upon 
the  broader  general  grounds  upon  which  he 
concluded  his  remarks,  I  will  not  even  pause 
to  correct  mistakes,  unintentional,  of  course, 
in  the  report  of  the  committee.  I  will  only 
say  that  if  reference  had  been  made  to  page 
24  of  the  testimony  it  wouid  have  been  seen 
that  I  ought  to  have  had  counted,  of  accepted 
votes,  108  more,  increasing  my  majority  10G 
votes  in  the  county  of  the  contestee  himself; 
and  that  by  referring  to  pages  26  and  48  it  would 
have  been  seen  that  the  majority  of  the  con¬ 
testee  should  have  been  similarly  reduced  by 
counting  for  me,  on  the  accepted  vote  of  Clay 
county,  a  majority  of  29  in  Liberty  township. 

It  is  repeated,  however,  that  I  will  consume 
none  of  the  time  to  which  I  am  restricted  in 
such  details  of  wrong  doing,  intending  to  base 
my  claim  upon  the  broader  grounds  to  which  the 
fair-minded  author  of  the  report  alluded  toward 
the  conclusion  of  his  remarks. 

I  make  no  apology  for  appearing  thus  a  sec¬ 
ond  time  a  contestant  at  your  bar  instead  of 
a  member  of  your  House.  I  made  none  four  ! 
years  ago,  when  coming  here  upon  a  record 
that  was  never  finally  acted  upon,  but  which 
upon  various  preliminary  motions  propitiated 
for  it  a  recognition  and  support  not  limited  to 
the  party  with  which  I  then  acted  and  yet  act ; 
and  as  the  record  upon  which  .  I  am  permitted 
to  speak  to-day  involves  not  only  the  same 
great  principles,  but  is  a  far  stronger  one,  I 
have,  of  course,  no  fear  but  that  you  will  again 
“  hear  me  for  my  cause.” 

It  is  the  cause,  sir,  of  an  upright,  a  noble, 
and  an  outraged  constituency;  and  in  respect¬ 
ful  recognition  of  the  discriminating  intelligence 
upon  which  alone  I  can  hope  for  a  discriminat¬ 
ing  adjudication  of  their  controversy,  the  read¬ 
ing  of  such  depositions  as  have  relation  to  the 


educational  antecedents  of  the  thousands  who 
did  not  attempt  either  to  register  or  to  vote 
in  the  election  here  in  contest — and  who  are 
hence  parties  to  it  in  its  constitutional  sense 
alone — will  constitute  my  first  duty.  Many  of 
these  were  citizens  of  the  first  consideration  and 
intelligence;  the  rest,  in  the  language  of  the 
testimony,  “good  average  people,”  who  either 
!  acted  upon  the  mistaken  theories  of  their 
i  political  education  in  going  into  arms  against 
the  Federal  authority,  or  by  furnishing  such 
“  aid  and  comfort”  to  its  adversaries  as  was 
!  treasonable  upon  my  political  theories,  but  the 
exact  reverse  upon  theirs.  Desiring  merely 
that  this  large  class  of  non-registering  and 
non-voting  citizens  may  not  be  improperly  con- 
j  founded,  on  the  one  hand,  with  the  totally  dif- 
j  ferent  class  who  did  register  and  vote,  either  as 
accepted  or  rejected  voters  ;  and,  on  the  other 
hand,  that  their  past  and  present  conduct  may 
be  appreciated  in  the  light  of  official  history, 
I  will  read  first  from  the  deposition  of  James 
i  M.  Riley,  who  testifies,  mainly,  as  to  the  effect 
|  of  certain  military  orders,  of  which  he  was  an 
I  official  administrator,  and  which  we  will  come 
to  by  and  by,  and  then  proceeds  on  page  52, 

|  as  follows : 

“  I  have  been  farther  requested,  in  this  connection, 

I  to  verify  from  the  printed  journal  of  the  House  of 
1  Representatives,  of  the  16th  of  May,  1861,  the  pre¬ 
amble  and  resolutions  which  were  unanimously 
adopted  and  sent  forth  by  that  body,  for  the  purpose 
of  inciting  the  peoplo  to  tako  up  arms  under  the 
then  Governor  of  this  State,  in  opposition  to  the  Gov¬ 
ernment  of  the  United  States.  They  are  recorded  on 
pages  73  and  74  of  said  journal,  and  are  as  follows, 
to  wit: 

Whereas  wc  have  learned  with  astonishment  and 
indignation  that  troops  in  the  service  of  the  Federal 
Government  have  surrounded  and  taken  prisoners  of 
war  the  encampment,  of  State  militia  lately  assem¬ 
bled  near  the  city  of  St.  Louis,  in  pursuance  of  law 
and  by  command  of  the  Governor,  for  the  purpose 
alone  of  military  instruction  ;  and  whereas  the  United 
States  troops  aforesaid,  assisted  by  a  mob  armed 
under  Federal  authority,  have  also  murdered  with 
|  unparalleled  atrocity  defenseless  men,  women,  and 
|  children,  citizens  of  Missouri,  lawfully  and  peace- 
I  fully  assembled:  Now,  therefore, 

'  Resolved  by  the  Jloune  of  Jieprcscntatii)es,  (tlio 
'  Senate  concurring  therein,)  That  we,  the  represent¬ 
atives  of  thepooplc  of  Missouri,  in  General  Assembly 
1  convened,  do  hereby  protest  to  the  civilized  world, 
j  and  especially  our  sister  States,  against  this  illegal, 

,  unchristian,  and  inhuman  violation  of  our  rights  by 
j  the  capture  of  our  militia,  assembled  under  the  Cou- 
;  stitution  of  the  United  States  and  the  constitution 
of  this  State,  and  tho  murder  of  our  defenseless 
i  people. 


“  ‘  Resolved  2.  That  while  Missouri  has  been  loyal 
to  the  Government,  struggling  for  its  reconstruction, 
and  is  now  sincerely  desirous  of  an  honorable  adjust¬ 
ment  of  existing  difficulties,  she  has  received  as  re¬ 
ward  for  her  fidelity,  from  persons  assuming  to  act 
under  Federal  authority,  unparalleled  insults  and 
wrong.  An  armed  despotism,  under  infuriated  par¬ 
tisan  leaders,  has  been  inaugurated  in  our  midst, 
controlled  by  no  law  but  passion,  and  actuated  by 
the  deepest  hate  against  the  people  of  Missouri  and 
their  institutions.  Our  railroads  are  now  under  mili¬ 
tary  occupation.  The  steamboat  C.  E.  Ililltnan.  en¬ 
gaged  in  transporting  goodsfrom  the  city  of  St.  Louis 
to  the  city  of  Nashville,  has  been  seized  by  Govern¬ 
ment  troops  within  the  jurisdiction  of  this  Sta  te  and 
the  cargo  taken  out.  The  capital  of  the  State  is 
openly  threatened  with  capture,  and  our  session  is 
now  being  held  in  the  midst  of  armed  citizens  hastily 
assembled  for  defense. 

“  'Resolved'. 3.  That  it  is  the  unquestioned  constitu¬ 
tional  right  of  the  State  to  arm,  equip,  and  organize 
her  militia  for  defense  against  aggression  from  any 
quarter,  and  the  attempt  of  Captain  Lyon,  acting,  as 
he  says,  under  authority  from  Washington,  to  use 
the  exercise  of  this  right  as  an  excuse  for  his  con¬ 
duct,  evinces  but  too  clearly  a  disposition  upon  the 
part  of  the  authorities  at  Washington  to  disregard 
and  trample  upon  the  sacred  rights  of  the  people  of 
Missouri. 

"*  Resolved  4.  That  the  charge  of  Captain  Lyon,  in 
his  letter  to  General  Frost,  that  the  proceedings  of 
the  State  authorities,  or  of  this  General  Assembly, 
at  any  time,  furnished  a  pretext  for  the  course  pur¬ 
sued  by  him  is  entirely  gratuitous  and  false. 

"Resolved  5.  That  the  Governor  of  this  State  is 
hereby  directed  to  make  demand  of  the  President  of 
the  United  States  whether  these  outrages  have  been 
authorized  by  the  Government,  and  for  the  immedi¬ 
ate  return  of  the  arms,  camp  equipage,  and  other 
property  belonging  to  this  State,  lately  taken  from 
our  military  near  St.  Louis,  and  for  the  unconditional 
release  of  our  State  troops. 

Resolved  6.  That  the  Governor  is  also  requested 
to  take  instant  action  by  calling  forth  the  militia  of 
the  State  for  the  purpose  of  defense,  and  that  the 
people  of  Missouri  should  rally  as  one  man  to  perish, 
if  necessary,  in  defending  their  constitutional  rights. 

Resolved  7.  That  the  Governor  be  requested  to 
furnish  a  copy  of  the  foregoing  preamble  and  resolu¬ 
tions  to  the  President  of  the  United  States  and  to  the 
Governor  of  each  of  the  States.’ 

‘‘As  already  stated,  these  resolutions  were  adopted 
without  a  dissenting  voice  of  the  members  present, 
among  whom  was  the  then  representative  from  this 
county,  a  Union  man,  (since  and  now  a  Radical.)  but 
acting  then  upon  the  political  incentives  and  social 
sympathies  which  were  almost  unanimous  in  this  sec¬ 
tion  of  the  State,  and  which  were  but  naturally  re¬ 
sponded  to  by  great  numbers  in  going  into  arms  for 
what  was  thus  officially  and  unanimously  represented 
to  them  as  the  defense  of  their  ‘constitutional  rights.’ 
Of  the  men  who  obeyed  this  and  similar  incitations 
by  going  into  arms,  or  otherwise  giving ‘aid  and  com¬ 
fort  to  tho  enemy,’  I  am  not  aware  of  any  that  ap¬ 
plied  to  register  or  vote  at  the  last  election.  My 
recollection  is  that  they  were  specifically  dissuaded 
from  doing  so,  not  only  in  the  published  addresses 
of  the  Conservative  State  committee,  but  by  the 
speakers  and  candidates  of  the  Conservative  party ; 
and  if  there  was  cast  at  the  last  election  in  this  county, 
either  on  the  accepted  or  rejected  list,  a  vote  that 
should  have  been  rejected  for  disloyalty,  either  my 
own  views  of  loyalty  are  erroneous  or  the  name  has 
not  been  mentioned  in  my  presence.” 

I  have  read,  Mr.  Speaker,  and  hold  in  my 
hand  the  official  journal  to  verify,  if  need  were, 
this  exemplification  of  the  unanimous  official 
incitation  of  the  House  of  Representatives  of 
my  State — of  which  thousands  of  copies  were 
ordered  to  be  printed  and  circulated  among 
the  people,  and  which  I  had  everywhere  to  con¬ 
front  when  addressing  them  in  opposition  to 
theories  thus  speciously  indorsed  and  promul¬ 
gated.  It  is,  perhaps,  pardonable  to  add,  sir, 
that  it  was  no  holiday  service,  but  that,  on  the 
contrary,  I  met  with  many  who  had  been  ac¬ 
customed  to  listen  to  mo  with  consideration 


and  courtesy  upon  previous  political  issues,  who 
seemed  quite  earnestly  impressed  that  I  ought 
not  to  be  listened  to  in  opposition  (as  it  was 
argued)  to  the  unanimous  legislative  incitation 
of  my  State.  It  will  suffice  to  add  that  great 
numbers  went  into  arms  openly,  in  opposition 
to  all  that  could  be  essayed  to  the  contrary 
by  those  who  haft  at  the  time  no  sufficient 
cooperation  to  prevent  it.  Of  many  “thou¬ 
sands”  of  these,  their  excuse  and  their  storj* 
is  so  well  related  by  one  of  their  number  as  to 
render  it  proper  to  read  it,  and  to  close  thereby 
the  preliminary  branch  of  the  case  with  which 
1  have  been  intrusted. 

At  page  54  Anthony  W.  Palmer  deposes 
and  swears  as  follows  : 

“I  am  a  citizen  of  Clinton  county,  Missouri,  and 
have  been  for  the  last  thirty  years.  I  was  educated 
in  the  political  theory  that  State  intervention,  by 
State  authority,  would  be  permissible  and  justifiable 
as  against  unconstitutional  Federal  aggression;  and 
that  in  case  of  ultimate  collision  or  conflict  the 
State  would  be  entitled  to  the  primary  allegiance  of 
its  citizens. 

“In  the  spring  of  the  year  of  1861  the  General 
Assembly  of  this  State  passed  a  law  to  provide  for 
organizing,  arming,  and  calling  out  its  militia  in 
anticipation  of  such  a  conflict :  and  as  it  was  exolicit 
and  peremptory  in  its  provisions,  I  entered  and  con¬ 
tinued  in  its  service  until  the  State  convention  of  the 
same  year  abrogated  the  said  law,  and  proclaimed  an 
amnesty  in  favor  of  all  who  would  renounce  or  aban¬ 
don  further  survice  under  it. 

“On  the  8th  of  December.  1861.  which  was  before 
the  expiration  of  the  period  to  which  the  acceptance 
of  that  amnesty  was  limited,  I  did  so  renounce  and 
abandon  that  service,  not  only  by  taking  the  oath 
which  was  required  of  me,  but  by  subsequently  and 
properly  reporting  myself  in  person  to  Colonel  James 
H.  Birch,  jr.,  who  was  the  aid-de-camp  of  Provis¬ 
ional  Governor  Gamble,  for  this  military  division  of 
the  State. 

“As  the  terms  of  the  voters’  oath  which  was  sub¬ 
sequently  prescribed  by  the  same  convention  were 
not  retrospective  beyond  the  period  to  which  the 
acceptance  of  that  amnesty  was  limited,  (sixty  days, 
expiring  on  the  17th  December,  1861,)  I  continued  of 
course  to  be  entitled  to  vote,  and  voted  accordingly, 
until  a  subsequent  convention,  which  assembled  in 
the  year  1865,  divested  me  of  the  right,  by  incorpo¬ 
rating  in  the  new  constitution  an  oath  which  is  not 
only  retrospective  as  to  the  whole  period  of  the 
rebellion,  but  which  included  also  all  who  had  ever 
sympathized  with  persons  engaged  in  it. 

“  As  I  could  not  honorably  or  conscientiously  take 
such  an  oath  as  that,  I  have  not  asserted  my  right  to 
vote,  even  against  the  adoption  of  the  new  constitu¬ 
tion,  which  I  feel  so  unjustly  disfranchises  me ;  and 
this,  notwithstanding  others,  upon  whoseconcurrenco 
and  advice  I  acted  in  obeying  the  call  of  the  State 
authorities  in  1861,  have  been  permitted  to  register 
and  to  vote  in  opposition  to  my  views  and  those  of 
the  conservative  Union  party  with  whom  I  would 
have  but  naturally  acted.  Of  these,  the  supervisor  of 
registration  in  this  county,  and  its  former  represent¬ 
ative  in  the  Legislature,  may  be  mentioned  as  among 
its  most  prominent  examples,  and  as  examples  only. 
The  former  is  proven,  upon  his  own  admissions  and 
otherwise,  to  have  similarly  sympathized  with  the 
southern  people,  and  to  have  advised  others  to  go 
into  the  State  service  (against  the  Federal  author¬ 
ities)  just  as  I  did :  and  the  latter  not  only  voted  for 
the  military  bill  under  which  Price’s  army  was  organ¬ 
ized,  but  also  voted  (unanimously  with  the  house 
of  which  he  was  a  member)  that  it  was  the  duty  of  the 
people  of  the  State  to  do  as  so  many  of  us  did  in  de¬ 
fense  of  what  we  were  thus  taught  to  believe  were  our 
‘  constitutional-rights.’  Of  course  I  complain  of  this 
in  no  other  sense  than  that  the  registry  law  has  been 
so  unjustly  administered  as  to  permit  those  who  thus 
incited  us  to  go  forward  in  what  they  officially  de¬ 
clared  to  be  our  duty  in  1861  to  register  and  to  vote 
for  our  disfranchisement,  for  no  other  reason  than 
that  we  acted  in  concurrence  with  their  advice  and 
their  law,  so  long  as  it  was  a  law.” 

*  *  *  *  ******  * 


“  I  have  since  that  period  been  attending  to  ray 
ordinary  pursuits  as  afarmcr— not,  of  course,  indiffer¬ 
ent  to  the  course  of  public  affairs — and  have  no  doubt 
that  what  is  thus  written  of  myself  is  substantially 
true  of  thousands  who  were  with  me  in  the  ‘State 
guard,’  under  the  State  law  of  1861,  but  who  declined, 
as  1  did,  to  go  into  the  confederate  service  (although 
strongly  pressed  to  do  so)  after  the  abrogation  of  that 
law  and  the  proffer  of  the  just  and  generuus  amnesty 
already  alluded  to.” 

It  may  seem  superfluous  to  add,  Mr.  Speaker, 
that  these  and  every  additional  deposition  I 
shall  read  were  taken  under  the  eye  and  the 
ear  of  the  counsel  for  the  contestee  ;  and  that 
it  is  intended  in  thus  giving  them  to  the  ear  of 
the  House,  and  afterward  to  its  congressional 
history,  (or  Globe,)  to  at  least  suggest  and 
establish  for  a  class  of  citizens  who  were  polit¬ 
ically  educated  and  officially  incited  to  do  just 
as  they  did,  a  more  charitable  and  statesman¬ 
like  appreciation  of  their  motives  and  conduct 
than  may  have  been  suggested  by  the  interested 
partisanry  which  is  content  to  carry  its  point, 
no  matter  how.  To  this,  however,  it  is  my 
duty  to  add  a  repetition  of  the  reliance,  that 
whatever  may  be  thought  of  the  motives  or  the 
reasoning  of  the  “  thousands  ”  thus  alluded  to, 
and  who  the  testimony  will  disclose  did  not 
even  attempt  to  register  or  to  vote,  their  status 
should  be  in  no  sense  confounded,  either  in 
the  argument  or  decision  I  am  respectfully 
addressing  myself  to  at  this  point  and  in  this 
connection,  with  the  ever  loyal  citizenry  who 
did  vote,  and  upon  whose  votes  I  solely  relied 
when  claiming  before  your  committee  that  it 
was  my  right  to  come  in,  and  sit,  and  act 
amongst  you  here. 

The  case  involves,  however,  another  point 
or  purpose  which  may  appropriately  enough 
be  considered  in  the  same  connection,  which 
is,  that  citizens  thus  forgiven  and  amnestied 
by  the  convention  of  1801  were  of  course  voters 
upon  the  question  of  calling  the  subsequent 
one  in  18G-1;  and  as  I  expect  to  deduce  from 
the  authorities,  {including  that  of  the  committee 
itself ,)  and  to  demonstrate  by  argument,  that 
a  convention  which  derived  its  sole  authority 
from  the  vote  of  such  a  political  “people,” 
(namely,  all  who  could  and  would  take  the 
prospective  oath  of  loyalty,  as  ordained  by  the 
first  convention,)  could  in  no  respect  transcend 
that  authority,  and  least  of  all  by  disfranchis¬ 
ing  its  own  constituency,  without  at  least  a  sub¬ 
sequent  ratification  by  that  constituency,  it  is 
respectfully  trusted  that  this  deposition  and  the 
one  1  will  next  read  may  at  least  be  regarded 
as  pertinent  to  the  governing  guide  of  registerial 
construction ,  upon  which  it  will  be  presently 
insisted  that  the  right  to  the  seat  in  contest 
(or  at  least  its  vacation)  should  be  made  to 
turn. 

I  will  hence  read  another  deposition,  at 
page  55,  as  demonstrating  that  it  was  not 
merely  such  misguided  and  forgiven  citizens 
as  Palmer  and  other  ‘^thousands  ”  were  with 
whom  the  political  contrivers  and  authors  of 
this  new  oath  repudiated  the  most  solemn 
faith  of  their  State,  but  also  such  ever  peace¬ 
ful  and  loyal  citizens  as  Joseph  B.  Biggerstaff, 
who  could  and  did  take  the  oath,  but  who  was 
imperiously  and  successfully  “construed’''  out 

\ 


of  his  vote,  as  will  appear  from  his  deposition, 
as  follows  : 

“  I  reside  in  Plattsburg,  Clinton  country,  Missouri, 
and  have  so  resided,  with  the  exception  of  a  year  or 
so  I  resided  on  my  farm,  (in  the  same  county,;  for 
the  last  twenty- four  years.  I  was  one  of  more  than 
a  hundred  and  fifty  citizens  who  desired  and  applied 
to  take  the  oath  of  loyalty,  and  to  cast  our  votes  in 
opposition  to  the  ratification  of  the  new  constitution 
at  the  election  which  was  held  for  that  purpose  at 
Plattsburg  and  throughout  the  iState  on  the  6th  day 
of  June,  1865. 

"  Being  refused  permission  to  do  this  by  the  elec¬ 
tion  judges,  on  the  ground  that  our  names  appeared, 
with  others,  upon  a  list  or  enrollment  that  had  been 
made  by  Certain  military  ollicers  during  the  latter 
part  of  the  year  1862,  as  ‘southern  sympathizers,’ wo 
complained  of  it  in  a  respectful  written  protest, 
which  was  simultaneously  prepared  and  forwarded 
to  the  Governor,  in  consequence  of  which  the  mate¬ 
rial  facts  of  the  case  remain  more  distinctly  im¬ 
pressed  upon  my  memory  than  they  otherwise  might 
have  done. 

“  I  was  personally  acquainted  with  many  of  the 
persons  thus  rejected  as  voters.  They  were  orderly 
and  upright  citizens,  several  of  whom  had  been  re¬ 
jected  as  militiamen  when  the  companies  came  to  bo 
reorganized  under  ‘  Order  No.  24,’  but  I  had  no  rea¬ 
son  to  believe  that  they  had  done  anything  which 
disentitled  them  to  take  the  prescribed  oath  and  to 
vote  as  they  had  always  done,  unless  that  oath  was 
to  be  construed  (as  it  then  was  and  has  since  been)  to 
mean  that  the  decision  of  these  military  classifiers 
was  final,  and  that  the  sympathies  which  many  of  us 
but  naturally  entertained  for  a  kindred  southern 
people  should  disentitle  us  to  avote,  under  a  Govern¬ 
ment  to  the  laws  and  requirements  of  which  we  had 
always  loyally  conformed  ourselves,  and  especially 
(as  was  then  the  case)  upon  the  question  of  our  own 
permanent  disfranchisement.  Such  an  assumption 
I  knew  to  be  the  reverse  of  either  truth  or  justice  in 
respect  to  my  own  loyalty,  and  I  had  no  reason  to 
believe  it  was  less  unjust  and  untrue  with  respect  to 
others  who  were  similarly  refused  the  right  to  vote 
at  that  election,  or  since,  in  which  it  appears  that 
only  about  half  the  citizens  of  the  county  or  the  State 
were  permitted  to  participate.” 

While  the  manner  in  which  the  committee 
have  condensed  and  stated  the  propositions  I 
argued  before  them  is  sufficiently  lawyer-like 
and  fair,  it  is  nevertheless  proper  to  be  sug¬ 
gested,  that  in  deference  to  the  judgment  of 
those  who  thought  my  object  could  be  as  well 
or  better  attained  by  simply  relying  upon  the 
terms  of  the  enabling  act  of  the  convention  to 
fix  and  limit  the  construction  of  their  ambig¬ 
uous  and  unratified  “  oath,”  it  was  dwelt  upon 
in  my  “  brief,”  as  it  will  be  in  this  connection, 
mainly  with  that  view.  It  matters  not,  of 
course,  that  upon  the  general  proposition  of 
the  absolute  nullity  of  the  so-called  new  con¬ 
stitution,  as  a  constitution,  the  opinion  that 
is  so  common  with  the  more  eminent  of  my 
professional  contemporaries  and  friends  con¬ 
tinues  to  be  my  own  opinion,  and  that  in 
another  connection,  and  for  a  purpose  more 
all-embracing,  I  may  at  least  condense  the 
reasons  for  that  opinion.  Until  then  it  will 
suffice  to  add  that  the  argument  of  my  “brief,” 
upon  which  “  the  committee  did  not  deem  itself 
at  liberty  to  enter,”  will  be  substantially  my 
argument  in  this  connection. 

In  that  “  brief,”  Mr.  Speaker,  I  quoted  from 
the  law  of  my  State  entitled  “An  act  to  pro¬ 
vide  for  calling  a  State  convention” — the 
organic  or  enabling  act,  as  it  will  be  called 
through  the  course  of  this  argument — its  fifth 
section,  as  follows : 

“Sue.  5.  The  delegates  elected  under  tho  provis¬ 
ions  of  this  act  shall  assemble  in  St.  Louis  on  tho 


6th  day  of  January,  1865,  and  organize  themselves 
into  a  convention  by  the  election  of  a  president  and 
other  officers,  as  they  may  deem  necessary,  and  shall 
proceed  to  consider,  first,  such  amendments  to  the 
constitution  of  the  State  as  may  be  by  them  deemed 
necessary  for  the  emancipation- of  slaves;  second, 
such  amendments  to  the  constitution  of  the  State  as 
may  be  by  them  deemed  necessary  to  preserve  in 
purity  the  elective  franchise  to  loyal  citizens,  and 
such  other  amendments  as  may  be  by  them  deemed 
essential  to  the  promotion  of  the  public  good.” 

At  the  date  of  this  enactment  the  elective 
franchise  in  that  State  was  regulated  by  a  con¬ 
stitutional  provision  which  granted  the  ballot 
to  all  white  males  of  the  requisite  age  and 
citizenship,  and  by  the  oath  contained  in  an 
ordinance  of  a  previous  State  convention, 
adopted  on  the  10th  day  of  June,  18G2,  in 
these  words  : 

“I,  A  B,  do  solemnly  swear  (or  affirm,  as  the  caso 
may  be)  that  I  will  support,  protect,  and  defend  the 
Constitution  of  the  United  States  and  the  constitu¬ 
tion  of  the  State  of  Missouri  against  all  enemies  and 
opposers,  whether  domestic  or  foreign;  that  I  will 
bear  true  faith,  loyalty,  and  allegiance  to  the  United 
States,  and  will  not,  directly  or  indirectly,  give  aid 
and  comfort  or  countenance  to  the  enemies  or  op- 
posers  thereof,  or  of  the  provisional  government  of 
the  State  of  Missouri,  any  ordinance,  law,  or  reso¬ 
lution  of  any  State  convention  or  Legislature,  or  of 
any  order  or  organization,  secret  or  otherwise,  to 
the  contrary  notwithstanding;  and  that  I  do  this 
with  a  full  and  honest  determination,  pledge,  and 
purpose  faithfully  to  keep  and  perform  the  same 
without  any  mental  reservation  or  evasion  what¬ 
ever.  And  I  do  further  solemnly  swear  (or  affirm) 
that  I  have  not,  since  the  17th  day  of  December, 
A.  D.  1861,  willfully  taken  up  arms  or  levied  war 
against  the  United  States  or  against  the  provisional 
government  of  the  State  of  Missouri :  so  help  me 
God.” 

As  rendering  intelligible  the  reason  for  desig¬ 
nating  the  prospective  period  and  operation  to 
which  this  oath  was  restricted,  it  is  deemed  suffi¬ 
cient  to  recur  to  the  depositions  of  Riley  and  Pal¬ 
mer,  which  were  read  at  the  opening  of  this 
argument,  and  to  add  that  by  other  provisions 
of  this  law  the  calling  and  holding  of  said  con¬ 
vention  were  made  to  depend  upon  a  vote  of 
the  people  of  the  State — the  ninth  and  tenth 
sections  of  the  organic  act,  from  which  section 
five  has  been  already  quoted,  being  in  these 
words  : 

“Sec.  9.  All  porsons  qualified  to  vote  for  members 
of  the  General  Assembly,  under  existing  laws  and 
ordinances,  shall  be  entitled  to  vote  for  delegates  to 
said  convention. 

“Sec.  10.  At  the  times  and  places  of  voting  afore¬ 
said  the  qualified  voters  of  said  State  shall  be  per¬ 
mitted  to  vote  ‘for  a  State  convention’  or  'against  a 
State  convention,’ and  the  votes  so  cast  shall  be  re¬ 
turned  to  the  secretary  of  State,  with  the  returns  for 
delegates  to  the  convention;  and  if  a  majority  so 
voting  shall  have  voted  ‘for  a  convention’  the  con¬ 
vention  shall  assemble  and  proceed  to  the  discharge 
of  the  duties  assigned  to  that  body  under  this  act,”  Ac. 

It  is  admitted  that  the  majority  of  those  “  so 
voting”  was  “for  a  convention;”  that  such  a 
convention  assembled,  as  it  was  authorized  to 
do,  in  the  city  of  St.  Louis,  on  the  6th  day  of 
January,  1865,  and  proceeded,  as  is  shown  by 
its  journal,  to  ordain  an  entire  “new  consti¬ 
tution,”  which  shows  upon  its  face  that  it  was 
not  to  be  submitted  for  ratification  to  the  con¬ 
stituency  or  “people”  who  had  authorized  its 
election  and  assemblage  for  the  purposes  speci¬ 
fied  in  the  organic  act,  (and  without  whose  rat¬ 
ification  it  is  respectfully  submitted  they  could 


not  be  divested  of  any  right  to  which  they  had 
not  contingently  assented  by  their  vote,  which 
only  authorized  a  convention  to  be  elected  for 
the  specific  purposes  enumerated  in  the  said 
organic  act,)  but  to  a  new  constituency  or 
“people,”  as  set  forth  in  the  new  oath,  (here 
in  contest,)  which,  by  the  terms  of  said  new 
constitution,  was  to  be  required  of  all  persons 
voting  upon  it. 

UNFAIRNESS  OF  THE  REGISTRATION. 

By  one  of  the  clauses  of  this  new  oath  every 
applicant  tor  registration  as  a  voter  has  to  swear 
that  he  has  never,  “with  a  view  to  avoid  enroll¬ 
ment  in  the  militia  of  this  State,  or  to  escape  the 
performance  of  duty  therein,  or  for  any  other 
purpose,  enrolled  himself  or  authorized  himself 
to  be  enrolled  by  or  before  any  officer  as  disloyal 
or  as  a  southern  sympathizer,  or  in  any  other 
terms  indicating  his  disaffection  to  the  Govern¬ 
ment  of  the  United  States  in  its  contest  with 
rebellion.”  To  this  it  may  appropriately  be 
added  in  this  connection,  (subject  to  the  testi¬ 
mony  to  be  presently  referred  to, )  that  loyal  men 
who  readily  took  this  oath  were  nevertheless 
rejected  as  voters  upon  a  simple  inspection  of 
the  military  enrollments  of  1862,  which  are 
proven  to  have  been  made  up,  “as  a  general 
rule,”  upon  principles  alike  at  variance  with 
justice  and  with  true  “loyalty,”,  by  an  officer 
who  had  “no  discretion  in  the  matter;”  and 
that  “  every  man,  who  had  at  anytime  sympa¬ 
thized  with  the  people  in  rebellion,”  (as  they 
had  all  been  taught  to  do,)  or  “whose  sympa¬ 
thies  were”  even  “  regarded  as  being  with  the 
South,”  was  entered  on  the  so-called  disloyal 
list,  although  protesting  his  loyalty  to  the  Gov¬ 
ernment  of  the  United  States.”  Respectfully 
repeating  the  hope  that  these  fundamental  offi¬ 
cial  facts  may  not  even  inadvertently  be  lost 
sight  of  by  the  House,  my  next  reference  will 
be  to  a  previous  portion  of  the  deposition  of 
Colonel  Riley,  to  be  followed  with  that  of  Cap¬ 
tain  Ferguson,  as  to  the  class  or  status  of  the 
men  who  wTer q  forced  upon  this  “so-called  dis¬ 
loyal  list,”  and  which  was  not  .only  made  the 
basis  of  the  registerial  enrollment  in  the  elec¬ 
tion  here  in  controversy,  but  against  the  show¬ 
ing  of  which,  it  may  as  well  here  be  quoted 
from  the  testimony,  the  registering  officers 
“would  hear  no  testimony.” 

At  pages  51  and  52  Colonel  Riley  testifies  as 
follows : 

“  I  have  resided  in  the  town  of  Plattsburg,  Mis¬ 
souri,  from  my  infancy,  and  am  in  my  twenty-ninth 
year  of  age.  I  am  a  lawyer  by  profession,  and  hav¬ 
ing  been  variously  connected  with  the  State  mili¬ 
tary  service  during  the  late  rebellion,  I  have  been 
requested  to  condense  the  import  and  effect  of  the 
various  military  orders  for  the  enrollment  of  the 
State  militia,  including  the  political  consequences  as 
resulting  from  what  is  termed  the  oath  of  loyalty  in 
the  new  constitution. 

“The  first  general  order  for  an  enrollment  of  the 
State  militia  was  numbered  19,  and  was  issued  on 
the  21st  of  July,  1862.  It  recited  the  necessity  for 
such  enrollment  and  organization,  with  a  view  to 
arrest  and  prevent  robberies,  murders,  and  lawless¬ 
ness  of  bushwhackers  and  other  marauders;  and  as 
it  made  no  distinction  between  citizens  of  different 
political  sympathies,  a  public  meeting  was  immedi¬ 
ately  called  and  held  in  the  court-house,  at  which  it 
was  resolved  without  dissent,  upon  the  motion  of 
Judge  Birch,  that  the  call  for  said  enrollment  would 


5 


be  promptly  responded  to  by  all  the  men  of  this 
county  subject  to  military  duty.  Within  a  few  days 
a  large  company,  comprising  citizens  of  all  shades  of 
political  opinion,  formed  into  a  company  and  com¬ 
pleted  their  organization  by  electing  officers  alike 
diverse  in  their  opinions  or  political  sympathies, 
and  the  work  appeared  to  be  similarly  proceeding  in 
other  parts  of  the  countv,  when  a  subsequent  order, 
dated  on  the  28fh  of  July,  and  numbered  twenty- 
three,  left  it  at  the  option  of  persons  who  preferred 
to  contribute  money  rather  than  personal  service  in 
the  militia,  to  dosot  There  were  many  who  preferred 
to  pay  the  exemption  fee,  which  was  fixed  at  ten 
dollars,  and  was  to  be  used  as  a  fund  for  defraying 
the  expense  of  the  militia  who  were  called  into  active 
service.  Some  did  thus  obtain  exemption,  and 
others  were  preparing  to  do  so,  when  an  entire  new 
turn  was  given  to  the  whole  matter  of  military  enroll¬ 
ment  and  organization  by  the  appearance  of  Order 
No.  21.  This  order,  which  was  issued  on  the  4th  of 
August,  18d2,  revoked  Order  No.  23,  and  directed  an 
enrollment  to  be  made  of  “all  the  loyal  who  were 
subject  to  military  duty,”  for  military  purposes,  and 
that  "all  disloyal  men  and  those  who  had  at  any 
time  sympathized  with  the  rebellion”  should  be  I 
separately  enrolled  on  another  list,  and  not  “per¬ 
mitted  to  do  duty  in  the  Missouri  militia.”  Incon¬ 
sequence  of  this  last  order,  together  with  the  others, 
the  town  company  that  had  completed  its  organiza¬ 
tion.  and  others  that  were  im process  of  organization 
in  other  parts  of  the  county,  had  to  be  broken  up 
or  modified,  inasmuch  as  those  of  them  who  were 
regarded  as  of  southern  feelings  or  sympathies  were 
not  permitted  to  enter  the  military  service  in  the 
said  militia. 

“  I  was  myself  an  enrolling  officer,  and  also  an  offi¬ 
cer  in  one  of  the  companies  that  was  organized  and 
went  into  active  service  underOrder  No.  24.  And  it 
is  hence  within  my  personal  as  well  as  my  official 
knowledge  that  the  militia  thus  actively  engagedhad  j 
to  be  supplied  with  horses;  and  sueh  as  were  needed  ! 
by  the  men  who  had  none  were  taken  from  the  men  I 
who  were  not  permitted  to  enroll  with  us  for  active 
service — such  being  the  result  of  the  order  under 
which  we  went  into  active  service. 

“  It  is  within  iny  knowledge  that  many  who  were  i 
thus  refused,  or  not  permitted  to  enroll  in  the  mil  ilia,  j 
and  who  were  consequently  enro'led  on  what  “as 
called  the  sympathizingor  disloyal  list,  were  rejected 
as  voters  during  the  period  of  last  year’s  registration, 
and  for  no  other  reason  that  I  am  aware  of  than  that 
their  names  were  found  upon  the  list  aforesaid. 
Quite  a  number  of  these  I  have  a  sufficiently  intimate 
acquaintance  with  to  form  the  opinion  that  they  were 
as  loyal  citizens  as  I  am  myself  admitted  to  have 
been.  They  so  far  differed  with  me  in  respect  to  what 
came  to  be  termed  their  sympathies,  or  in  the  ex¬ 
pression  of  them,  as  to  be  refused  permission  to  act 
as  militiamen  :  but  I  regarded  such  syinpar, hies,  with  j 
persons  of  their  nativity  or  associations,  as  being  but 
natural  and  not  at  all  disloyal.” 

Deferentially  relying  that,  with  the  patient 
attention  of  the  House,  it  will  find  me  making 
the  necessary  legal  connections  at  the  proper 
time,  1  will  next  read  from  the  testimony  of 
Captain  Ferguson,  in  corruooration  of  that  of 
Colonel  Riley,  as  follows: 

“I  have  read  that  portion  of  the  deposition  of 
Colonel  Riley  (thisday  given  in  the  contested-election 
case  of  Birch  v s.  Van  Horn)  which  relates  to  the 
enrollment  and  organization  of  what  he  styles  the 
Plattsburg company,  under  General  Order  No.  19,  and 
concur  in  the  general  correctne-s  of  his  statements. 

I  was  elected  captain  of  said  company  and  marched 
with  it  (under  orders)  to  Cameron,  a  distance  of 
eighteen  or  twenty  miles,  to  join  with  others  in  pur¬ 
suit  of  the  rebel  Colonel  Poindexter;  but  when  we 
reached  Cameron,  it  was  found  that,  there  was  enough 
without  ih,  and  we  were  permitted  to  return  home. 

A  few  days  after  this  Order  No.  24  was  issued  and 
promulgated,  and  as  my  command  contained  quite  a 
number  of  men  whoso  sympathies,  as  they  were 
termed,  were  supposed  to  be  southern,  it  had  to  be  | 
broken  up  or  modified,  as  stated  by  Colonel  Ililey. 

“  I  was  also  present  at  Cameron  a  few  days  after¬ 
ward,  when  a  company  similarly  organized,  under  I 
the  command  of  Captain  (afterward Colonel)  Parrott,  j 
was  dissolved,  or  rather  some  fifteen  or  sixteen  men 
were  dismissed  from  it  on  account  of  their  alleged  ! 


sympathies.  I  was  not  regarded  as  having  such 
sympathies,  became  subsequently  the  assessor  and 
sheriff  of  the  county,  and  have  always  been  allowed 
my  vote.” 

May  it  not  be  appropriately  suggested  at  this 
point,  that  by  recurring  to  the  testimony  of 
Riley  as  t  o  the  similar  breaking  up  of  other  com¬ 
panies  that  were  in  process  of  organization  in 
other  parts  of  the  county,  and  by  accepting 
the  statement  of  Ferguson  as  to  the  number  of 
fighting  ‘‘sympathizers”  who  were  thusdriven 
from  his  company,  and  that  of  Captain  Parrott, 
as  the  probable  average  of  the  district,  the 
aggregate  will  be  found  to  so  nearly  correspond 
with  the  aggregate  of  the  rejected  votes  which 
were  so  conscientiously  sworn  into  the  ballot- 
boxes  for  me,  as  to  justify  the  conclusion  that, 
under  the  “general  rule”  which  is  recited  by 
the  enrolling  otlicers,  the  men  who  had  armed 
and  marched  and  bivouacked  in  pursuit  ot 
Poindexter,  were  to  that  extent  schemingly 
and  cruelly  driven  from  the  defense  of  your 
standards  and  transferred  to  the  “so-called 
disloyal  list  of  southern  sympathizers?” 

How  came  all  this  to  pass,  Mr.  Speaker? 
The  testimony  of  Viglini,  at  page  8,  forecasts 
alike  the  process  antrthe  wrong,  as  follows: 

“  Question .  What  office  did  you  hold  during  the  l.i  te 
rebellion,  and  what  duties  did  you  perform  under 
General  Schofield’s  Order  No.  24? 

“  Answer.  I  was  one  of  the  justices  of  the  county 
court  of  Clinton  county,  and  was  provost  marshal 
of  said  county.  In  connection  with  the  latter  office 
I  had  the  duty  assigned  me  by  Lieutenant  Colonel 
Swearingen  of  enrolling  the  citizens  of  said  county 
on  what  was  called  the  loyal  and  disloyal  lists.  On 
the  loyal  list  it  was  my  duty  to  enroll  for  military 
purposes  all  male  citizens  between  eighteen  and 
forty-five  years  of  age;  and  on  the  so-called  dis¬ 
loyal  list  it  was  ray  duty  to  enroll  all  citizens  of 
whatsoever  age  who  had  at  anytime  sympathized  with 
the  people  in  rebellion.  I  had  no  discretion  in  the 
matter,  nor  had  the  people.  The  enrollment  of  the 
county  was  made,  therefore,  as  directed  by  General 
Schofield’s  Order  No.  24  and  the  explanatory  circular 
of  Brigadier  General  Ilall,  dated  September  25,  1862. 
The  total  number  enrolled  on  the  so-called  disloyal 
list  was  over  six  hundred.  In  the  enrollment  of  the 
county,  as  a  general  rule,  every  man  whose  sympa¬ 
thies  were  regarded  as  being  with  the  South  was 
entered  on  the  so-called  disloyal  list,  although  pro¬ 
testing  his  loyalty  to  the  Government  of  the  United 
States.” 

The  next  revelation — may  it  please  the 
House — the  next  revelation  in  the  history  of 
this  forecasting  and  deliberate  political  injus¬ 
tice  will  but  naturally  be  to  demonstrate  from 
the  testimony,  that  the  contemned  and  out¬ 
raged  “loyalty”  which  had  been  thus  enrolled 
as  disloyal  despite  its  submission  to  the  ordeal 
of  rebel  fire,  was,  with  equal  lieartlessness, 
under  a  like  systematic  and  inexorable  “instruc¬ 
tion”  or  11  rule"  refused  registration  upon  the 
list  of  “accepted”  voters,  and  had  to  register 
and  to  vote  as  “rejected”  voters;  and  that 
your  whole  practical  duty  will  consist  in  decid¬ 
ing  whether  such  a  registration  was  just  or 
unjust ,  legal  or  illegal right  or  wrong. 

The  first  testimony  I  will  read  ityon  this  point 
will  be  that  of  Harvey  Springer,  a  friend  and 
supporter  of  the  contestee,  (as  every  register¬ 
ing  officer  of  the  district  was  supposed  to  be,) 
but  one  of  the  few  who  was  not  himself  a  can¬ 
didate  on  the  same  ticket  with  him,  and  who 
had  hence  no  personal  reason  to  either  shirk 


6 


my  subpoena  or  evade  my  questions — and  it  is 
but  just  to  add  too  upright  a  man  to  have 
done  so — and  who  hence  appeared  and  swore 
as  follows : 

“ Question .  Were  you  appointed  by  the  supervisor 
of  registration  for  this  county  register  for  this  (Con¬ 
cord)  township  ? 

“ Answer .  I  was. 

“ Question .  Did  the  supervisor  furnish  you  with  a 
list  of  names  said  to  be  of  men  who  were  said  to  be 
enrolled  as  disloyal  under  General  Schofield’s  Order 
No.  24  as  disloyal  persons?  If  so,  what  were  the 
supervisor’s  instructions,  and  what  were  your  actions 
when  said  persons  came  to  be  registered? 

“ Answer .  The  supervisor  furnished  me  a  list  cer¬ 
tified  by  him  to  be  a  copy  of  the  sympathizing  list 
of  this  county,  with  instructions  that  all  such  persons 
when  they  applied  for  registration  should  be  put  on 
the  rejected  list,  and  which  was  accordingly  done. 

“ Question .  Were  not  the  most  of  the  men  you 
rejected  as  voters  on  that  list? 

“ Answer .  All  the  men  rejected  by  me  except  four 
were  on  that  list,  and  were  rejected  for  that  reason. 

“  Question.  Did  every  person  who  was  put  on  the 
rejected  list  by  you  take  the  oath  of  loyalty  presented 
by  the  new  constitution  ? 

“ Answer .  Every  one  was  required  to  take  the  said 
oath  of  loyalty  before  he  was  even  put  on  the  rejected 
list.” 

There  is  a  cross-examination  of  this  witness, 
as  of  several  others,  which  but  confirms  my 
judgment  of  the  forecasting  injustice  of  the 
registerial  construction  which  is  in  issue  here — 
a  construction  which  was  carried  into  a  general 
instruction,  and  which  practically  and  peremp¬ 
torily  forbade  the  right  of  loyal  or  accepted 
registry  to  even  the  sympathizing  soldiery  of 
the  district,  whose  obedience  to  the  call  of 
the  loyal  general,  now  a  member  of  this 
House,  [Mr.  Loan,]  when  marshaling  a  force 
to  drive  from  the  country  a  daring  and  popular 
rebel  leader,  need  not  be  further  dwelt  upon. 
That  such  men  were  not  disloyal;  that  on  the 
contrary  their  sympathies,  as  has  been  so  well 
sworn  to  by  one  of  the  mustering  officers,  were 
“  but  natural  to  persons  of  their  nativity  and 
associations ;”  and  that  having  from  first  to 
last  repressed  or  subordinated  these  natural 
sympathies  to  the  sterner  behests  of  loyal  duty — 
just  as  I  may  be  pardoned  for  adding  my  own 
were,  and  yet  are,  repressed — the  registerial 
“  rule'’  under  which  they  were  so  schemingly 
and  so  cruelly  ostracized,  and  which  will  be 
more  patiently  examined  by  and  by,  was  so  cal- 
culatingly,  so  deliberately,  and  so  atrociously 
unjust,  as  of  itself  to  constitute  palpable  and  suf¬ 
ficient  grounds  to  at  least  set  aside  an  election 
which  was  held  under  such  a  registration. 

But  I  have  not  yet  done  with  the  testimony 
of  the  friends  of  the  contestee  as  to  this  delib¬ 
erately  concerted  and  deliberately  executed 
malregistration.  By  the  testimony  of  Hunt, 
at  pages  12  and  13,  it  will  be  seen  that  he  was 
a  member  of  the  convention  which  nominated 
the  contestee,  and  that  he  was  compelled  to 
swear,  in  answer  to  the  searching  question  of 
my  attorney,  that  the  members  of  that  conven¬ 
tion  (at  which  the  contestee  was  present) 
11  expressed  themselves  that  only  in  the  rigid 
enforcement  of  that  law  could  Judge  Birch  be 
beaten,’’  and  that  “such  were  the  views  and 
purposes  of  that  convention.”  No  wonder, 
Mr.  Speaker,  that  a  lawyer  as  astute  and  fore¬ 
casting  as  the  cross-examining  attorney  for 


1 1 

the  contestee  is  conceded  to  have  been  should 
I  object  (as  he  did,  page  13)  to  the  answering 
of  the  question  which  drew  out  such  an  answer, 
combined  with  such  an  admission.  He,  too, 
was  a  representative  friend  and  supporter  of 
the  contestee,  and  was  of  course  profession¬ 
ally  aware  that  such  an  answer  as  Hunt  or 
any  other  honest  member  of  the  nominating 
convention  would  be  compelled  to  make  to 
such  a  question,  would  establish  the  general 
concurrence  that  the  success  of  the  sitting 
member  could  only  be  achieved  against  me  by 
exactly  reversing  the  unshaken  judicial  rule 
for  construing  statutes  of  the  nature  of  the 
Missouri  registration  law ;  and  that  to  thus 
show  that  such  was  the  mutual  and  concurrent 
“purpose”  with  which  the  supporters  of  the 
contestee  returned  from  their  convention, 
would  but  naturally  explain  and  illustrate,  to 
the  degree  of  indignant  and  general  vitiation, 
a  registration  which  was  as  illegal  in  “pur¬ 
pose”  as  it  was  utterly  shameless  in  practice. 

Without  feeling  impermissible  in  this  con¬ 
nection  to  direct  your  attention  to  the  deposi¬ 
tions  from  other  counties,  as  to  what  I  was 
prevented  from  proving  by  the  “ sustained'" 
objections  of  the  contestee’s  attorney,  I  but 
refer,  at  page  17,  to  the  deposition  of  Bassett, 
another  of  his  leading  supporters  in  my  own 
county,  as  corroborating  that  of  his  conven¬ 
tional  one,  and  will  no  longer  restrain  myself 
from  the  legal  “connection”  sometime  since 
alluded  to,  and  which  will  be  a  substantial 
resume  of  the  “brief”  from  which  I  have  so 
long,  but  I  trust  rather  illustratively,  digressed. 

ILLEGAL  CONSTRUCTION  OF  TnE  OATH  SO  AS  TO 

REJECT  MEN  WHOSE  CONDUCT  WAS  “NOT  EVEN 

BLAMEWORTHY.” 

That  the  oath  in  contest  here,  especially  in 
the  official  construction  which  was  everywhere 
given  to  it  by  the  officers  of  registration,  was 
more  restrictive  of  the  elective  franchise  than 
was  authorized  by  the  organic  or  enabling  act 
of  the  Legislature,  which  was  simply  to  “pro¬ 
ceed  to  the  duties  assigned  to  them  under  that 
act,”  or,  in  other  words,  as  to  the  question 
here,  to  “  consider  of  such  amendments  to  the 
constitution  of  the  State  as  may  be  by  them 
deemed  necessary  ”  “to  preserve  in  purity  the 
elective  franchise  to  loyal  citizens,”  will  be 
judicially  apparent  by  reference  to  the  second 
paragraph  of  the  opinion  and  decision  which 
was  rendered  by  the  Supreme  Court  of  the 
United  States  at  its  last  term,  wherein  John 
A.  Cummings  was  plaintiff  in  error  and  the 
State  of  Missouri  defendant  in  error,  namely: 

“  The  oath  prescribed  by  the  constitution,  divided 
into  its  separable  parts,  embraces  more  than  thirty 
distinct  affirmations  ortests.  Some  of  the  a«ts  against 
which  it  is  directed  constitute  offenses  of  the  highest 
grade,  to  which,  upon  conviction,  heavy  penalties  are 
attached.  Some  of  the  acts  have  nevc-r  been  classed 
as  offenses  in  the  laws  of  any  State,  and  some  of  the 
acts,  under  many  circumstances,  would  not  be  even 
blameworthy.” 

May  it  not  be  unhesitatingly  submitted  that 
a  convention  which  had  no  authority  conferred 
upon  it  in  respect  to  the  elective  franchise, 
except,  at  the  farthest,  such  a  restriction  of  it 
as  should  preserve  it  “in  purity  to  loyal  citi- 
!  zens,”  was  but  necessarily  without  authority 


7 


*  u  I 

to  disfranchise  a  class  of  men  which  all  the 
testimony  has  shown,  and  will  continue  to 
show,  were  themselves  “loyal  citizens,”  and 
whose  alleged  “sympathies”  or  “acts,”  it  has 
been  seen,’  and  will  continue  to  be  shown  by 
the  testimony,  were  “not  even  blameworthy?”  j 
And  could  such  a  construction  as  was  given  ■ 
to  the  clauses  of  the  oath  in  contest  by  the  j 
registering  officers  of  the  district,  who  are 
proven  to  have  been  the  friends  and  supporters 
of  the  contestee,  have  been  in  any  respect 
legalized  by  an  election  in  which  those  citizens 
were  not  allowed  to  participate?  Or,  if  legal¬ 
ized  at  all,  as  it  may  be  argued  it  should  be, 
for  the  sake  of  the  public  tranquillity,  may  it 
not  be  additionally  and  undoubtingly  submit¬ 
ted,  that  the  only  permissible  construction  of 
“the  said  oath”  is  fixed,  not  merely  by  an 
unvarying  current  of  judicial  decisions,  which 
lean  to  the  side  of  the  “people”  who  were 
voters  on  one  day  and  menaced  with  disfran¬ 
chisement  the  next  day,  but  by  the  unyielding 
terms  of  the  fifth  section  of  the  organic  act 
itself;  and  that  no  construction  was  permis¬ 
sible  which  transcended  the  object  or  purpose 
to  which  (in  this  respect)  the  convention  was 
restricted,  namely,  “such  amendments  to  the 
constitution  of  the  State  as  may  be  by  them 
deemed  necessary”  “to  preserve  in  purity 
the  elective  franchise  to  loyal  citizens?” 

Who  were  “loyal  citizens,”  who  “  the  peo¬ 
ple,”  at  the  date  and  by  the  recognition  of 
that  organic  act?  Were  those  who  had  mis¬ 
taken  their  “paramount  allegiance,”  as  Pal¬ 
mer  and  “thousands  of  others”  did,  but  who 
condoned  their  error  and  placed  themselves  in 
true  allegiance,  under  the  ordinance  and  the 
amnesty  (State  and  Federal)  of  1862,  any  less 
entitled  to  voting  citizenship  than  other  citi¬ 
zens  were?  xYnd  having  been  recognized  as 
citizens  and  voters  by  the  organic  act  upon 
which  they  were  called  to  vote  in  1864,  and 
which  was  to  give  to  the  convention,  if  called, 
all  the  authority  it  would  possess  in  respect  to 
the  elective  franchise,  could  such  citizens  and 
voters  be  disfranchised,  as  the  contestee  as¬ 
sumes  they  have  been,  unless  they  were  out¬ 
voted  at  an  election  in  which  they,  too,  were 
allowed  to  participate?  It  would  seem  that 
where  the  very  gist,  of  their  complaint  is  that 
they  gave  the  convention  no  authority  to  dis¬ 
franchise  them,  without  at  least  a  proper  sub¬ 
sequent  ratification,  all  such  questions  as  the 
foregoing  must  be  necessarily  answered  in  the 
negative;  and  that  if  so,  it  at  least  decides 
and  enstamps  the  “construction”  which  the 
oath  in  question  should  have  received,  instead 
of  the  exact  reverse,  to  which  probably  every 
page  of  the  record  bears  testimony  that  it  was 
misused  and  perverted. 

Had  these  supervisors  and  registers  the  right, 
or  was  it  legal  and  right  in  them ,  to  disregard 
this  fundamental  guide  to  a  just  and  proper  con¬ 
struction  of  this  purposely  ambiguous  “oath,” 
and  to  so  contemn  and  disregard  the  organic 
limitation  which  was  imposed  upon  the  con¬ 
vention  itself,  as  to  absolutely  exclude  from 
registration,  as  “accepted”  voters,  the  “loyal 
citizens  ”  whom  the  record  sdiows  to  have  been 


obedient  to  every  legal  requisition,  including 
prompt  and  faithful  military  duty,  until  they 
were  schcmingly  and  cruelly  driven  from  that 
service  by  the  construction  which  was  placed 
upon  a  new  military  order  (No.  24),  for  “sym¬ 
pathies”  which  seem  always  to  have  been 
subordinate  to  their  “loyalty,”  and  which,  in 
the  language  again  quoted  from  the  court  of 
last  resort,  “were  not  even  blameworthy?” 
That  these  partisan  registers — many  of  them 
candidates  on  the  same  ticket  with  the  con¬ 
testee — did  give  to  the  constitutional  and  con¬ 
curring  (?)  legislative  enactment  upon  this 
point  a  latitude  of  construction  which  not  only 
transcended  but  practically  defeated  the  limit¬ 
ation  to  which  the  organic  act  (and  the  peo¬ 
ple  in  voting  for  it)  restricted  the  convention, 
has  been  proven  by  the  testimony  of  Register 
Springer,  (as  to  the  so-called  sympathizing  lists 
which  were  made  by  the  military  authorities 
in  1862,  and  by  which  the  registering  ofiicers 
were  instructed  to  be  governed,)  and  by  the 
concurring  testimony  of  Viglini,  Riley,  Rigger- 
staff,  and  Ferguson,  already  'referred  to,  in 
Clinton,  and  of  Hale,  Brand,  and  others  in 
the  counties  of  Carroll,  Saline,  Platte,  and 
Clay — pages  30,  31,  40,  43,  and  45.  By  this 
testimony  it  will  be  seen  that  the  mere  fact  of 
having  been  enrolled  on  the  “sympathizing 
list”  of  1862  by  the  military  subordinate  for 
the  time  being— whether  with,  without,  or  even 
against  the  consent  of  the  citizen — was  to  be, 
and  was,  regarded  as  “conclusive  evidence” 
upon  the  point  of  his  disloyalty ;  and  that  neither 
the  registering  officer  nor  the  board  of  appeals, 
which  consisted  of  the  instructing  supervisor 
and  the  thus  instructed  registers  alone,  “would 
hearany  testimony  in  opposition  to  it.” 

Were,  then,  the  2,825  voters,  which  are  proven 
to  have  been  either  registered  and  polled  for 
the  contestant  as  “rejected”  voters,  or  rejected 
from  his  poll  of  “accepted”  voters  by  the 
county  canvassers  of  Clinton,  Clay,  and  Jack- 
son,  legally  or  illegally  rejected — at  least  in 
the  proportion  established  by  Register  Springer, 
and  which  it  is  but  fair  to  assume  as  the  pro¬ 
portion  throughout  the  district?  Referring 
again  to  the  testimony  of  the  military  enrolling 
officers,  and  to  the  answer  which  had  to  be 
everywhere  made  to  “question  29,”  (page  19;) 
referring  also  to  the  testimony,  which  but  re¬ 
peats  the  law,  that  every  citizen  whose  name 
and  vote  stand  thus  recorded  as  “rejected” 
had  taken  and  subscribed  the  so-called  “oath 
of  loyalty”  in  full;  and  that  if  falsely  taking  it 
they  subjected  themselves  almost  inevitably  to 
prosecutions  for  perjury  before  courts  and  juries 
from  whom  they  could  at  least  expect  no 2)olit- 
ical  favor  as  against  the  partisan  registers  who 
had  rejected  them ;  and  that,  notwithstanding 
thesixty  days’  additional  time  which  was  allowed 
to  the  contestee,  in  which  to  take  rebuttingand 
other  testimony  in  this  case,  he  has  placed 
nothing  upon  the  record  to  denote  that  even  an 
indictment  had  been  found  against  cither  of 
these  supporters  of  the  contestant  for  having 
sworn  falsely,  throughout  the  district,  in  order 
to  get  in  a  majority,  upon  my  count,  of  2,236 
in  my  favor — if  of  this  vast  number  of  rejected 


8 


voters,  whose  status  is  written  down  as  that  of 
“loyal  men”  in  the  uncontradicted  and  even 
unrebntted  record  they  have  had  presented  for 
your  consideration — if  with  this,  and  the  sys¬ 
tematic  and  all-pervading  unfairness  and  fraud 
which  the  testimony  establishes  against  the 
registration  and  other  official  acts  of  the  friends 
and  supporters  of  the  contestee,  from  its  open¬ 
ing  page  to  its  concluding  paragraph,  it  may 
not  be  presumptively  computed  "and  concurred 
in,  that  at  least  enough  of  them  to  have  elected 
the  contestant  were  not  “disloyal”  in  the  sense 
of  the  organic  construction  to  which  this  oath 
must  necessarily  be  subordinate — if  this  may  not 
he  so ,  the  contestant  must  needs  submit  to  have 
his  judgment  corrected  by  the  majority  of  the 
House,  in  the  view  he  has  thus  alone  insisted 
upon  as  entitling  him  to  the  seat  in  controversy. 

THE  REGISTERING  OFFICERS  THEMSELVES  THE  MEN 

WHO  COULD  LEAST  TRUTHFULLY  TAKE  THE  OATH. 

Looking  a  little  further  into  the  record,  as 
the  only  permissible  basis  for  the  argument  or 
the  final  disposition  of  this  case,  it  will  be  seen, 
at  page  13,  that  George  Funkhouser  swears  that 
he  had  been  sheriff  for  two  years  preceding  the 
election,  the  latter  part  of  the  time  being  ne¬ 
cessarily  under  the  appointment  of  Governor 
Fletcher,  and  hence  removing  even  a  suspicion 
as  to  his  loyalty;  that  he  had  previously,  for  a 
number  ofyears,  been  sheriffand  deputy  sheriff, 
and  was  hence  well  acquainted  with  the  people 
of  the  county,  including  those  whose  votes  had 
*  been  rejected  under  the  new  constitution,  and 
that  he  did  not  regard  the  sympathies  of  those 
with  whom  he  was  thus  “  well  acquainted”  as 
amounting  to  disloyalty  to  the  Government  of 
the  United  States,  but  that,  on  the  contrary, 
they  were  peaceable,  law-abiding  and  law-. sus¬ 
taining  citizens,  claiming  to  be  loyal  notwith¬ 
standing  their  sympathies. 

In  answer  to  the  question  which  was  con¬ 
structed  (in  hcec  verba)  upon  the  specific  charge 
that  was  made  against  a  portion  of  my  sup¬ 
porters,  in  this  county  and  elsewhere,  in  the 
closing  paragraph  of  the  answer  of  the  con¬ 
testee,  he  swears  specifically  that  he  does  not 
“know  or  believe  that  any  person  of  known 
disloyalt}7,  who  had  been  in  arms  against  the 
United  States  or  the  State  of  Missouri,  or 
who  had  given  aid  and  comfort  to  the  enemies 
of  the  United  States  or  the  State  of  Missouri, 
Qr  any  outlaw,  guerrilla,  bushwhacker,  or  other 
disloyal  person,  disqualified  under  the  laws  of 
the  State,  was  permitted  to  vote  in  the  election 
here  in  contest.”  Viglini,  the  old  provost 
marshal  and  enrolling  officer,  answers  this 
question  as  Funkhouser  did,  except  as  to  the 
county  supervisor  of  registration,  and  he,  it  is 
proven,  was  elected  sheriff  on  the  same  ticket 
with  t \\q  contestee — and  substantially  the  same  is 
sworn  to  in  other  counties.  Johnson  swears  that 
he  had  resided  in  the  county  for  upward  oftwenty 
years,  had  been  twice  a  judge  of  the  county 
court,  was  generally  acquainted  with  the  peo¬ 
ple  ;  and  having  replied  to  the  charge  of  the 
coniestee,  just  as  the  old  sheriff  did,  answers 
further  and  still  more  specifically,  under  the 
Cross-examination  of  the  counsel  for  the  con¬ 
testee,  that  he  does  “not  know  of  any  man 


voting  on  the  rejected  list  who  was  disloyal 
within  the  meaning  of  the  terms  of  the  new 
constitution.” 

And  yet  the  contestee  neither  condescends 
or  ventures  to  take  any  testimony,  either  to 
sustain  the  charge  upon  which  it  was  'perhaps 
mistakenly  relied  to  bluff  or  badgerthe  Repre¬ 
sentative  of  the  people  thus  proven ly  calumni¬ 
ated,  or  to  attempt  to  even  modify  the  record 
upon  which  I  appeal  for  your  verdict  against 
the  systematic  and  all-embracing  injustice  of  a 
most  shameless  registration !  May  I  not  suc¬ 
cessfully  submit  to  the  House  whether  such  a 
neglect  to  avail  himself  in  this  respect  of  the 
additional  “sixty  days”  yougavehirn  is  cura¬ 
ble  or  even  excusable  in  the  too  charitable  pre¬ 
sumption  of  the  committee  as  to  what  he  might 
have  done  but  did  not  do  ;  or  by  such  of  his 
cross-examinations  as  prove  that  my  political 
status  does  not  accord  with  that  of  a  majority 
of  the  tribunal  before  whom  I  have  brought  my 
case  as  judges,  not  as  partisans. 

I  might  quote  still  further  corroborations  of 
the  effect  of  the  systematic  and  well  nigh  mad¬ 
dening  perversions  of  an  oath  which,  whether 
purposely  ambiguous  or  not,  (so  that  its  prac¬ 
tical  construction  might  be  either  plastic  or 
stubborn,  according  to  the  interest  and  the 
“  purpose  ”  of  the  party  who  had  it  all  in  their 
own  hands,)  I  have  abundantly  proven  toas  mis¬ 
construed  and  misadministered.  As  denoted 
elsewhere  I  might  still  further  enforce  and  am¬ 
plify  this  position  by  reading  and  remarking 
upon  the  testimony  of  Lyons  and  Hughes,  of 
Whittington  and  the  Clays,  in  my  own  county, 
and  upon  that  of  Brand,  Myers,  Hale,  Standley, 
Williams,  Winfrey,  Sandidge,  Norton,  Lewis, 
Wilson,  Roberts,  Fisher,  O’Nan,  Adkins.  Moss, 
Hallisey,  and  Garner  in  other  counties;  but 
permit  it  to  suffice,  in  recognition  of  your  long- 
taxed  patience,  that  as  the  testimony  from  my 
own  county  contains  not  even  an  insinuation  to 
the  disparagement  of  the  practical  loyalty  of  its 
rejected  voters,  and  as  we  are  tacitly  tryingthis 
case  on  the  testimony  from  that  county  alone — 
not  so  strong  in  some  respects  as  the  testimony 
from  other  counties,  but  conceded  to  be  (as 
suggested  by  the  committee)  a  fair  or  average 
“specimen  of  the  evidence  relied  on” — we 
will  pass  at  length  to  the  legal  propositions 
which  I  so  deferentially,  yet  earnestly  propose 
to  contest  with  the  committee. 

That  being  perhaps  the  only  contest  between 
us  in  the  view  of  the  case  now;  under  considera¬ 
tion,  it  may  be  conceded  to  the  erudite  and 
distinguished  author  of  the  report  that  my  less 
astute  judgment  might  probably  have  con¬ 
curred  with  his,  had  the  case  in  controversy 
been  necessarily  determinable  upon  the  tech¬ 
nicalities  of  the  books,  instead  of  the  satisfied 
conscience  and  judgment  of  the  House.  My 
convictions,  however,  are  quite  as  earnest  as 
his  can  be,  that  I  have  brought  before  you  the 
consideration  of  a  record  from  which  your 
judgment  ought  to  be  satisfied  that  the  election 
here  in  contest  was  not  the  “  free  and  fair”  one 
for  which  we  have  a  constitutional  guarantee — 
and  upon  which,  indeed,  depends  whatever  else 
is'  just,  or  free,  or  fair — and  that  it  should  not 


therefore  be  recognized  and  upheld  upon  tech¬ 
nicalities  which  I  sought  to  avoid,  but  could  not. 

THE  TECHNICAL  QUESTION  OF  EVIDENCE. 

The  reasons  assigned  by  the  committee  for 
not  even  vacating  the  seat  in  contest  are  set 
forth  in  the  concluding  paragraphs  of  their 
report  as  follows  : 

“If  the  class  of  evidence  introduced  by  the  con¬ 
testant  h;id  been  the  only  means  within  his  reach  to 
establish  the  right  of  the  persons  rejected  to  be  regis¬ 
tered  and  vote  as  qualified  voters,  there  would  be 
very  plausible  ground  to  claim  that  enough  ought 
to  be  presumed  from  it  to.  at  least  vacate  the  elec¬ 
tion,  unless  what  is  proved  by  the  contestant  was 
rebutted  by  evidence  from  the  other  side.  But  the 
contestant  was  not  confined  to  this  proof,  or  evidence 
of  this  general  nature  at  all.  The  provisions  of  the 
constitution  and  laws  of  Missouri  furnished  him 
peculiar  facilities  to  establish  his  case,  if  he  relied 
upon  proving  that  legal  voters  were  excluded  from 
registration  and  voting  as  qualified  voters,  inasmuch 
as  the  rejected  list  of  the  registers  and  the  rejected 
votes  furni'hcd  the  names  of  the  persons  and  the 
candidates  for  whom  they  voted. 

“Under  these  circumstances,  the  committee  con¬ 
sider  they  have  no  right  to  rely  upon  such  vague  and 
general  evidence  as  has  been  furnished,  or  to  draw  j 
presumptions  and  conclusions  from  it,  when  it  was 
clearly  within  the  power  of  the  contestant  to  have 
established  the  facts  he  asks  us  to  presume  by  clear 
and  exact  proof,  if  such  facts  exist. 

“The  committee  consider,  also,  that  in  order  to 
unseat  a  member  of  this  House  who  has  the  regular 
certificate  of  election,  and  who  is  conceded  to  have 
received  a  majority  of  several  hundred  votes  of  the 
votes  received  and  counted,  they  should  be  able 
to  report  whose  votes  were  excluded  that  ought  to 
hAvc  been  counted;  that  it  would  not  do  lor  the 
committee  or  for  the  House  to  say  that  out  of  twenty- 
five  hundred  rejected  voters,  all  of  whosejiames  are 
unknown,  they  arc  satisfied  that  enough  were  legal 
voters  and  ought  to  have  been  counted  to  give  the 
contestant  a  majority.” 

As  I  would  fain  escape  even  the  implication 
of  censure  for  having  in  any  sense  trifled  with 
the  patience  of  the  House  in  having  brought 
to  its  consideration  a  contest  upon  evidence 
less  specific  than  it  was  reasonably  in  my  power 
to  obtain — and  which,  it  may  be  added,  I  bad 
precedent  official  reason  to  believe  would  be 
deemed  sufficient  to  at  least  vacate  this  elec¬ 
tion — it  is  trusted  I  may  be  borne  with  a  little 
longer  whilst  essaying  to  vindicate  or^exense 
myself  in  this  regard.  Before  doing  this,  how¬ 
ever.  it  may  be  permissible  to  remark  that 
I  was  aware,  from  the  commencement,  that 
if  “the  best  evidence”  in ‘such  a  case  was 
required  of  me,  it  would  involve,  first,  the 
official  comparison  of  the  ballots  with  the  cor¬ 
responding  numbers  on  the  poll-books,  and 
that  then,  after  proving  by  exemplifications  of 
the  registry  lists  that  the  persons  whose  names 
were  found  to  correspond  with  the  numbers  on 
the  ballots  which  had  been  cast  for  me  had  been 
duly  registered ,  to  have  proceeded  to  prove  by 
competent  parol  testimony,  after  proper  notice 
fts  to  each  individual,  that  each  of  them  (or  at 
least  enough  of  them,  one  by  one,  to  have 
changed  the  result  of  the  election)  had  been 
illegally  rejected  as  a  voter. 

As  to  the  additional  labor  and  expense  of  all 
this,  of  which  the  lawyers  of  the  House  will  be 
the  most  competent  to  form  a  reasonable  prox¬ 
imate  estimate,  they  will  doubtless  concur  with 
me  that  it  ought  not  to  be  imposed  upon  a  con¬ 
testant.  unless  absolutely  necessary  to  the  intel¬ 
ligent  and  upright  decision  of  his  contest — a 


contest  which,  in  analogy  to  the  laws  of  Mis¬ 
souri,  should  be  proceeded  with  and  decided 
“without  the  form  of  pleading.”  What  with 
the  foundation  expenses  of  comparisons,  copies 
and  certificates  at  the  clerks’  offices,  and  the 
subsequent  expenses  of  summoning  and  exam¬ 
ining  proper  witnesses  as  to  the  loyalty  of  each 
particular  name  or  person  whose  vote  had  been 
rejected  despite  his  own  solemn  “  oafb  of  loy¬ 
alty,”  a  very  moderate  estimate  of  the  mileage 
and  attendance  fees  of  witnesses,  day  after 
day,  and  of  the  additional  lawyers  who  would 
have  necessarily  to  be  employed  to  look  into 
and  conduct  these  tedious  examinations  in  con¬ 
nection  with  the  judges  and  clerks  before  whom 
they  were  made  and  reduced  to  writing,  ivould 
carry  the  figures  to»an  aggregate  so  absolutely 
enormous  as  of  itself  to  denote  the  hardship 
of  the  rule  suggested  by  the  committee ;  and 
when  to  this  consideration  there  will  be  added 
from  the  testimony  that  the  official  partisans 
of  the  contestee,  whose  so-called  elections  were 
in  the  same  process  of  contest  with  his  own, 
would  not  permit  me  to  obtain  “the  best  tes¬ 
timony”  in  cases  where  the  ballots  bad  to  be 
resorted  to,  surely  the  record  1  have  made 
before  you,  and  which  assails  and  viliates  the 
registration  of  the  district  as  a  whole ,  may  be 
regarded  as  at  least  sufficient  to  “  vacate  the 
election”  which  was  held  under  it. 

Turning  to  that  branch  of  the  testimony,  it 
will  be  seen  by  the  depositions  of  Livingston, 
Essig,  and  Funkhouser,  on  pages  G,  1(3,  13, 
and  14,  that  on  the  5th  of  February  last  (which 
was  as  soon  under  the  return  law  of  my  State 
and  your  notice  law  as  I  could)  I  made  formal 
application  to  the  court  of  my  county  to  make 
an  order  which  would  enable  me  to  have  a 
recount  of  the  ballots  which  were  cast  respect¬ 
ively  for  theicontestee  and  myself,  and  that 
my  application  was  officially  overruled,  in  con¬ 
formity  with  the  construction  (no  matter  how 
absurd  or  simulated)  which  the  presiding  justice 
announced  as  to  the  law  of  the  State,  in  contra¬ 
vention  of  the  design  of  the  law  of  Congress. 

The  testimony  will  further  show  t  hat  1  there¬ 
upon  publicly  requested  either  of  the  judges 
then  upon  the  bench  to  consent  to  take  my 
depositions  for  me,  and  to  issue  the  necessary 
subpoena  duces  tecum  to  their  clerk  (under  the 
Federal  law)  to  produce  the  ballot-boxes, 
registry  lists,  and  poll-books,  from  which  to  be 
able  to  fix  and  depose  to  the  number  of  rejected 
voters,  as  well  as  the  number  of  accepted 
voters,  which  had  been  cast  for  the  contestee 
and  myself  in  my  own  township,  where  there 
had  been  no  certificate  attached  to  the  poll- 
books  as  to  whom  the  rejected  votes  had  been 
given,  and  where  I  bad  reason  to  believe  that  1 
had  been  most  grossly  swindled  in  the  cast  or 
epunt  of  the  accepted  vote;  and  that  this,  too. 
was  unanimously  refused  me  by  a  bench  who 
claimed  to  have  been  elected  on  the  same  ticket, 
and  consequently  to  hold  and  exercise  their 
offices  by  the  same  tenure  with  the  contestee. 

As  nearly  all  the  counties  in  the  district  were 
officered  dc  facto  as  my  own  was,  and  as  the 
judge  of  the  circuit  was  understood  to  be 
absent  at  the  capitol,  whereby  even  the  uueer- 


tain  remedy  of  mandamus  could  not  be  made 
available  to  me  in  time  to  have  my  case  prop-  | 
erly  prepared  and  presented  within  the  limit  , 
enacted  by  your  law,  I  had  necessarily  to  yield  , 
to  official  misrulings  and  discourtesies  which  I 
could  not  control,  and  to  compromise  (so  to 
speak)  for  such  testimony  as  I  could  get ,  and 
as  I  could  get  it.  I  had  given  notice  to  take 
these  depositions  before  one  of  those  county 
judges,  at  the  county  clerk's  office,  but  the 
judge  refused  to  serve  me,  and  the  clerk  refused 
my  attorney  even  the  use  of  his  office.  The 
taking  had  hence  to  be  properly  adjourned  to 
another  place,  before  two  justices  of  the  peace, 
before  whom  this  clerk  (who  was  also  elected 
on  the  contestee's  ticket)  was  summoned  as  a 
witness  ;  and  who,  in  answer  to  the  question, 

‘ 1  Why  did  you  not  count  the  ballots  of  Concord 
township?”  replied: 

“Simply  because  there  was  no  official  order  made 
.  by  tile  county  court  for  me  to  do  so,  without  which  I 
had  no  authority  to  do  so  under  the  law.” 

It  will  be  seen  by  the  report  of  the  commit¬ 
tee  (page  5)  that  although  this  clerk  swears  he 
“was  personally  acquainted  with  nearly  all  the 
registered  voters  on  the  rejected  list  of  that 
township,  and  with  their  politics,  and  that  his 
.opinion  and  belief  was  that  they  all  voted  for  j 
me,”  they  were  nevertheless  not  included  in  | 
the  number  set  down  to  me  in  the  report  as  j 
my  rejected  aggregate  in  that  county.  So  also 
of  two  other  townships  in  La  Fayette  county, 
(and  it  may  be  added  of  one  of  the  largest  vot¬ 
ing  districts  in  Platte  county,)  which  demon¬ 
strates  that  the  committee  was  at  least  to  that 
extent  mistaken  in  assuming  that  the  “re-  1 
jected  lists  of  the  registers,  and  the  rejected 
votes,  furnished  the  names  of  the  candidates 
for  whom  they  voted.”  Whatever  may  be 
thought,  therefore,  of  the  rule  Aey  have  sug¬ 
gested  as  to  “names,”  when  applied  to  a  con-  | 
testant's  claim  himself  to  fill  the  seat  of  a  sit¬ 
ting  member,  it  is  deferentially  submitted  that  ! 
it  would  be  neither  judicious  nor  equitable  to 
apply  it  to  the  vacation  of  a  seat  where  (as  is  j 
relied  upon  in  this  case)  there  is  other  aud 
quite  sufficient  testimony  to  satisfy  the  House  | 
that  it  should  be  vacated  ;  and  this,  notwith¬ 
standing  the  mistaken  assumption  to  which 
you  have  just  listened,  that  as  “the  name  of 
every  person  on  the  rejected  list  who  offered 
to  vote  is  preserved,  and  the  ballot  he  at  tempted 
to  cast  is  marked  with  his  number ,  it  was  per¬ 
fectly  easy1'1  for  me  to  show  the  names  of  all  my 
rejected  voters  by  record  evidence. 

The  distinction  in  the  two  cases  is  so  appa¬ 
rent  to  my  own  understanding — it  was  indeed 
so  reluctantly  forced  upon  my  understanding 
when  the  ordinary  facilities  of  the  law  were 
denied  to  me  at  the  first  practical  commence¬ 
ment  of  this  controversy — that  I  may  be  par¬ 
doned  the  reiteration,  (if  such  it  be,)  that  in  j 
thus  again  referring  to  this  portion  ot  the  import  j 
of  the  committee,  it  is  designed  simply  to  ! 
demonstrate  that,  however  proper  its  judgment  j 
may  have  been  in  declining  to  count  votes  in 
my  favor  which  I  was  denied  the  right  of  iden¬ 
tifying  by  the  ballots — and  could  hence  only  do 
so  upon  testimony  of  a  “class”  or  character 


less  certain  or  exact — it  would  seem  impermis¬ 
sibly  inequitable  and  unforecasting  to  refuse  to 
consider  even  such  testimony  (much  less  the 
“array”  of  more  specific  testimony  I  have 
here  presented)  as  a  basis  upon  which  to  at 
least  vacate  this  election. 

As  a  practical  condensation  of  this  point  it 
may  be  stated  thus:  in  my  notice  to  the  con¬ 
testant,  my  first  and  fourth  charges,  upon  which 
it  will  be  seen  he  took  issue  with  me  in  his  an¬ 
swer,  are  stated  thus  : 

“  1.  I  charge  that  I  received  a  majority  of  the  votes 
that  were  legallycastfor  a  Representative  in  Congress 
at  the  said  election,  and  that  they  should  have  been 
counted  for  me  in  the  returns  from  the  various  town¬ 
ships  and  counties  of  the  district  instead  of  being 
rejected  (as  they  were)  and  omitted  from  my  count 
by  the  election  judges  and  other  returning  officers. 
Of  the  legal  ballots  thus  cast  for  me,  but  which  were 
not  counted  in  my  favor,  about  one  hundred  and 
seventy  were  so  cast  by  legal  voters  in  the  county  of 
Clinton  ;  about  one  hundred  in  the  county  of  Cald¬ 
well;  about  tAvo  hundred  in  the  county  of  Ray  :  about 
the  same  number  in  the  county  of  Carroll;  probably 
about  one  hundred  in  the  county  of  Chariton;  about 
five  hundred  in  the  county  of  Saline,  and  probably 
about  an  equal  number  in  the  counties,  respectively, 
of  La  Fayette,  Jackson,  Platte,  and  Clay;  and  the 
votes  thus  cast  for  me,  but  rejected  and  not  counted 
in  my  favor,  were  so  cast  by  loyal  citizens,  who  had 
duly  complied  with  the  test-oath  provision  of  the 
new  constitution,  but  were  denied  the  right  of  regis¬ 
tration  as  qualified  voters,  their  names  registered  as 
rejected  voters,  and  their  ballots  placed  in  the  boxes 
of  rejected  voters  accordingly.  I  shall  hence  demand 
such  a  comparison  or  inspection  of  the  ballots  thus 
cast  for  me  as  may  be  sufficient  to  verify  the  allega¬ 
tion  thus  made  that  you  were  not,  and  that  I  was, 
elected  to  Congress  from  this  district.” 

“4.  I  charge  that  in  many  townships  and  counties 
you  were  certified  to  have  received  more  votes  than 
were  really  cast  for  you,  while  a  less  number  than  those 
cast  for  me  were  counted  and  certified  in  my  favor; 
that  in  some  counties  the  poll-books  of  entire  town¬ 
ships  which  had  given  me  majorities  were  illegally 
excluded  in  the  count  and  certificates  of  the  county 
clerks,  who  were  your  partisans;  while  in  others  the 
poll-books  of  entire  townships  which  had  given  you 
majorities,  but  which  were  legally  invalid,  were  in¬ 
cluded  in  the  count  and  certificates  of  clerks  alike 
partisan  and  unjust;  and  I  shall  consequently  insist 
upon  a  recount  of  all  the  ballots  cast  at  said  elec¬ 
tion.” 

This  notice  was  duly  served  upon  the  sitting 
member  on  the  10th  day  of  January,  1867. 
On  the  5th  of  February  following,  which  was 
the  first  day  afterward  that  a  court  was  held 
at  -which  I  could  “demand  such  a  compari¬ 
son  or  inspection  of  the  ballots”  as  I  had 
notified  him  I  would  demand,  I  did  so  demand 
it,  and  it  was  refused  to  me  by  a  court,  the 
judges  of  whom  claimed  to  have  been  elected 
on  the  same  ticket  -with  the  sitting  member. 
If  it  -would  at  all  strengthen  the  argument  on 
this  point,  it  might  be  additionally  stated  that 
the  partisan  county  attorney,  who  subsequently 
appeared  as  the  contestee’s  counsel  in  the 
taking  of  these  depositions,  was  even  officiously 
prominent  in  pointing  out  the  law  upon  which 
this  gross  misruling  was  predicated  ;  but  it  will 
suffice  to  state  that  as  this  was  the  ruling  of  a 
court  in  the  preliminary  or  foundation  st&ge 
of  our  suit  or  controversy,  he  at  least  accepted 
that  ruling,  so  far  as  it  forced  upon  me  the 
class  of  testimony  to  which  I  was  thencefor¬ 
ward  compelled  to  resort  at  his  own  peril;  and 
that  it  would  be  to  reverse  every  principle  of 
either  law  or  justice  to  permit  him  thus  and 
here  to  “take  advantage”  of  his  own  .inis- 


judgment  or  “of  his  own  wrong.”  If  this  be 
not  so,  or  if,  in  other  words,  what  I  can  but 
regard  as  a  more  rigid  ruling  of  the  commit¬ 
tee  than  it  would  make  upon  still  further 
reflection  upon  the  record,  is  nevertheless 
indorsed  as  the  judgment  of  the  House,  I  can 
but  naturally  suppose  it  to  carry  with  it  a  vir¬ 
tual  decision  of  all  future  election  contests  in 
favor  of  the  party  who  (for  the  time  being) 
may  have  the  ear  of  the  county  tribunals,  who 
hold  the  key  to  the  county  records ! 

The  House  will  of  course  bear  with  me  in 
the  attempt  to  render  this  illustration  still 
more  practically  apposite  and  persuasive  as  to 
its  duty  in  this  case.  As  it  was  shown  by  the 
returns  which  were  canvassed  and  sent  to  the 
secretary  of  State  that  the  contestee  had  a 
majority  against  me  of  534,  I  would  of  course 
have  had  to  prove,  under  the  committee’s 
ruling,  in  order  to  entitle  myself  to  the  seat  in 
controversy,  that  at  least  535  votes  which  were 
not  counted  and  returned  for  me  ought  to  have 
been’ so  counted  and  so  returned.  Well,  sir,  it 
is  shown  by  the  testimony  that  I  essayed  my 
utmost  to  do  this,  and  I  feel  that  I  hazard  noth¬ 
ing  in  saying  I  would  have  done  so  but  for  the 
misrulings  of  the  court,  which  were  practically 
final  as  to  the  “  class”  of  testimony  to  which  I 
was  driven  in  further  carrying  on  this  contest. 
To  the  number  of  133  “rejected”  votes,  and  as 
I  had  reason  to  believe  to  a  much  larger  number 
of  “accepted”  votes,  the  records  of  the  elec¬ 
tion  were  absolutely  sealed  against  me ;  and 
when  to  this  it  is  added,  that  from  this  illegal 
and  doubtless  preconcerted  refusal  of  the  offi¬ 
cial  supporters  of  the  contestee,  to  permit  me 
to  exemplify  or  prove  from  the  ballots  of  the 
townships  where  these  rejected  votes  were 
divided  between  him  and  myself  the  “  names” 
of  those  who  voted  for  me ,  as  contradistin¬ 
guished  from  the  name  or  names  of  those  who 
voted  for  him,  is  it  not  too  plain  for  argument 
that  the  contestee  himself  is  responsible  for 
“the  class  of  evidence”  to  which  I  was  most 
reluctantly  driven  in  the  preparation,  present¬ 
ation,  and  final  submission  of  this  case? 

Will  you,  nevertheless,  permit  him  to  object 
against  me  now,  that  his  judges  and  clerks 
refused  me  justice  then  ?  or  will  you  not  the 
rather  concede  to  me,  that  as  I  had  no  rea¬ 
son  to  anticipate  that  the  judicial  misrulings 
and  other  official  impediments  wmch  had  been 
cast  in  my  way  thus  early  in  my  own  county 
would  be  in  any  sense  modified  to  my  advan¬ 
tage  in  a  majority  of  the  remaining  counties,  I 
Should  be  at  least  excused  for  having  so  com¬ 
promised  my  way,  through  judges  and  clerks 
who  were  “dead  against  me,”  as  to  makesureof 
what  1  had  reason  to  suppose  would  be  testi¬ 
mony  enough  “  to  at  least  vacate  the  election?” 

THE  MOST  APPOSITE  PRECEDENT  IN  THE  CASE. 

I  knew,  Mr.  Speaker,  what  I  may  allude  to 
without  even  an  implication  of  political  or 
ofiicial  disparagement,  that  my  mere  political 
status  was  not  such  as  to  commend  me  to 
consideration  beyond  “the  testimony  and  the 
law,”  but  I  recurred  to  what  1  was  once  a 
party  to  be 'ere  the  same  committee,  and  to 
what  1  shall  here  recall  and  copy  from  their 


ruling  in  the  three  Missouri  cases  which  were 
presented  for  their  consideration  four  years 
ago,  and  which,  in  their  report  upon  the  case 
of  Bruce  vs.  Loan,  is  set  out  in  these  equit¬ 
able,  direct,  and  unambiguous  words: 

“The  contestee,  on  the  hearing,’  took  exceptions 
to  some  of  the  allegations  contained  in  the  contest¬ 
ant’s  notice  as  indefinite,  and  referred  to  failures  on 
the  part  of  the  contestant  to  comply  with  some  of 
the  provisions  of  the  act  passed  in  1851  relative  to 
taking  testimony  in  contested-election  cases. 

“The  majority  of  the  committee,  from  the  view 
they  entertain  of  this  case,  deem  it  unnecessary  to 
discuss  in  their  report  the  questions  presented  by  the 
contestee’s  exceptions,  as  they  are  entirely  sati.-fied, 
from  the  testimony  produced,  where  both  parties 
appeared  and  the  witnesses  were  subjected  to  a  rigid 
cross-examination  by  the  contestee,  that  the  election 
was  not  conducted  so  as  to  entitle  either  candidate 
to  a  seat  in  this  House.” 

I  remembered  this  perfectly,  Mr.  Speaker. 
It  may  be  respectfully  repeated  that  I  remem¬ 
bered  it  analogously,  discriminatingly,  and 
personally;  and  that  although  in  that,  case,  and 
in  the  analogous  ones,  to  one  of  which  1  was 
myself  the  party  contestant,  the  minority  of 
the  committee  took  a  sonj^what  different  view 
both  as  to  the  “  class”  and  the  sufficiency  of 
the  testimony,  there  was  neither  of  us  who  re¬ 
garded  the  loss  of  our  cases  by  the  subsequent 
non-concurrence  of  the  House  as  having  re¬ 
sulted  from  the  character  or  the  11  class' '  of  our 
testimony.  In  my  own  case  I  had  testimony 
from  but  four  counties  out  of  ten,  and  even  that 
was  rebutted  and  “explained  away”  by  many 
well-considered  depositions  on  the  part  of  the 
contestee;  whereas  in  the  present  case  I  have 
the  same  “class  of  evidence”  (as  to  the  extent 
of  the  disfranchisements  which  were  complained 
of  alike  in  each  case)  from  eight  of  the  ten  coun¬ 
ties  of  the  same  district,  and  without  even  so 
much  as  a  line  to  break  the  force  of  so  exuber¬ 
ant  an  abundance.  If,  therefore,  I  have  suc¬ 
ceeded  in  satisfying  the  dignity  of  the  House 
that  I  did  not  disregard  what  1  had  reason  to 
regard  as  its  most  apposite  precedents,  but 
rather  clung  to  them  in  the  extremity  to  which 
1  deemed  myself  reduced  by  the  misrulings  and 
other  wrongs  of  the  official  partisans  of  the 
contestee,  and  have  also  satisfied  its  consci¬ 
entious  judgment  that  I  have  at  least  proven 
enough  to  “vacate”  this  election,  I  shall  but 
naturally  expect  that  the  resolution  which 
declares  the  contestee  entitled  to  represent  our 
district  will  be  suoerseded  by  one  which  shall 
reprobate  the  registration  and  election  as  hav¬ 
ing  been  alike  illegal  and  unfair,  and  as  a  con¬ 
sequence  vacate  the  seat  in  controversy. 

THE  NEW  CONSTITUTION  NEVER  JUDICIALLY' 
RECOGNIZED  IN  MISSOURI. 

A  few  words  more,  Mr.  Speaker,  and  from 
the  technical  question  of  “  evidence,”  which 
we  have  been  so  long  considering,  we  will  pass 
to  the  broader  and  less  technical  guarantees  of 
the  Federal  Constitution — to  the  “  bill  of  rights 
for  the  people  of  each  State,”  asa  former  Chief 
Justice  of  the  United  States  denominated  those 
guarantees,  and  which  1  hope  to  demonstrate 
are  all-embracing  as  to  the  more  enlarged  con¬ 
stitutional  aspect  of  this  case.  In  a  subor- 
dinately  conservative  view  of  the  question  it 
might  perhaps  be  best  were  it  as  true  in  fact 


as  it  doubtless  appeared  to  the  official  under¬ 
standing  of  the  committee,  that  “by  every 
department  of  the  State  government  of  Mis¬ 
souri”  its  new  “  constitution  is  regarded  and 
acted  upon  as  the  fundamental  law  of  the 
State.”  As,  however,  of  the  official  bulletin 
once  announcing  to  the  nations,  in  the  face 
ot  sorrowing  history,  that  “order  reigned  in 
Warsaw,”  so,  too,  of  whatever  has  been  of 
recognition  for  this  new  constitution,  by  the 
people  of  a  State  so  fair  and  fertile  as  to  con¬ 
tinue  to  prosper  even  under  the  worst  misgov- 
ernment — it  has  been  but  “the  order  of  the 
despot  and  the  slave.”  That  constitution,  sir, 
was  never  so  “recognized  and  acted  upon”  by 
the  judicial  department  of  our  State  govern¬ 
ment  so  long  as  we  had  a  constitutional  judi¬ 
ciary  :  but  it  was,  on  the  contrary,  the  crown¬ 
ing  blemish  of  the  dishonoring  official  history 
of  that  instrument,  that  our  supreme  judges, 
who  had  been  elected  by  the  same  constitu¬ 
ency  which  had  limited  the  convention  not  to 
do  what  they  did  do,  were  dragged  from  the 
bench  to  the  calaboose  in  obeisance  to  the 
usurping  sword  of  a  partisan  executive,  and 
that  the  same  sword  thrust  into  their  places,  in 
defiance  alike  of  protest  and  of  law,  a  new 
bench  of  so-called  judges,  through  whom  alone 
it  came  to  pass  that  such  a  constitution  was 
even  “seemingly”  recognized  by  the  State 
judiciary,  and  that  only  to  be  thrown  back  upon 
them  by  the  supreme  Federal  judiciary.  When 
to  this  it  is  added  that  perhaps  nine  tenths  of 
the  revenue  of  the  State  is  paid  by  citizens 
who  realize  that  the  Government  which  col¬ 
lects  it  exists  alone  in  “  fraud,  and  force,  and 
acquiescence,”  and  that  there  is  reserved  to 
the  House  I  am  addressing,  “in  the  reception  of 
Representatives  from  that  State,”  the  “right 
to  judge  of  the  qualifications  and  returns ”  of 
those  Representatives,  there  will  have  been 
laid  at  least  a  sufficient  premise  for  the  para¬ 
graphs  which  it  is  but  fair  to  next  quote  from 
the  report  of  the  committee,  as  follows: 

“The  contestant  now  claims  that  this  State  consti¬ 
tution,  so  lar  at  least  as  it  affects  elections  of  mem¬ 
bers  of  Congress,  should  be  held  a  nullity,  and  as  if 
it  had  never  been  adopted  by  the  people  of  the  State. 

“  This  is  claimed  upon  the  ground  that  the  conven¬ 
tion  by  whom  it  was  framed  exceeded  their  powers 
given  by  the  legislative  act  by  which  the  convention 
was  called,  and  that  this  was  not  cured  by  its  subse¬ 
quent  adoption  by  the  people,  because,  in  submitting 
it  to  a  vote  of  the  people,  those  only  were  allowed  to 
vote  who  could  take  the  oath  prescribed  in  the  second 
article  of  the  constitution,  the  effect  of  which  was  to 
preclude  large  num  bers  from  voting  who  had  been 
previously 'allowed  to  vote.  The  committee  have 
not  deemed  themselves  at  liberty  to  enter  upon  this 
inquiry. 

“It  being  conceded  that  by  every  department  of 
the  State  government  of  Missouri  this  constitution  is 
recognized  and  acted  upon  as  the  fundamental  law 
of  the  State,  and  by  Congress  in  the  reception  of 
representatives  from  the  State,  it  is  in  our  judgment 
too  late  for  this  House  to  inquire  as  to  the  regularity 
of  its  formation  or  adoption  by  the  State.” 

To  what  extent  these  positions  have  been 
anticipated  and  theoretically  replied  to,  in  the 
previous  argument  as  to  the  proper  construc¬ 
tion  of  the  clause  of  the  constitution  here  in 
controversy,  remains,  of  course,  to  be  denoted 
in  the  final  judgment  of  the  House;  and  I  hence 


here  conclude  or  close  that  branch  ofthe  argu¬ 
ment  to  which  you  have  so  indulgently  listened. 

THE  QUESTION  OF  CONSTITUTIONAL  POWER  TO  IMPOSE 
THE  OATH  IN  CONTROVERSY. 

Coming,  lastly,  to  that  portion  of  the  report 
of  the  commit! ee  which  has  relation  to  the 
decision  of  the  Supreme  Court,  in  disaffirmance 
of  the  power  of  a  State  to  enact  such  a  “test'" 
as  the  one  I  here  complain  of,  because  of 
the  explicit  prohibitions  contained  in  the  Con¬ 
stitution  of  the  United  States,  and  the  reason¬ 
ing  of  which  is  deemed  to  be  quite  as  appli¬ 
cable  to  the  disfranchisement  of  voters  as  to 
the  disqualification  of  priests  or  preachers,  I 
read  from  the  committee’s  report  at  pages  4 
and  5,  as  follows  : 

“  The  contestant  claims  that  the  same  application 
of  principles  requires  the  same  decision  in  relation 
to  voters;  that  the  virtual  disfranchisement  of  per¬ 
sons  who  were  voters  under  the  previous  constitution 
and  laws  of  the  State,  but  who  are  prevented  from 
voting  under  the  new  constitution  by  reason  of  their 
inability  to  take  the  oath  it  requires,  can  only  be 
regarded  as  a  punishment  for  the  act,  which  stands 
in  the  way  of  taking  the  oath,  and  that  the  Consti¬ 
tution  of  the  United  States  prohibits  the  infliction 
of  punishment  by  subsequent  legislation. 

“If  such  disfranchisement  must  be  regarded  as 
established  for  the  purpose  of  punishing  the  persons 
thus  deprived  of  the  right  of  voting  it  must  be  ad¬ 
mitted  to  come  entirely  within  the  reasoning  by 
which  the  above  cited  judgment  of  the  court  is  sup¬ 
ported.” 

Respectfully  requesting  that  the  concession 
thus  recited  from  the  report  be  kept  continu¬ 
ally  uppermost  in  the  eye  of  the  House,  I  read 
on  as  follows : 

“Your  committee  believe  that  the  provisions  of 
the  new  constitution  of  Missouri  may  be  supported, 
so  far  as  they  require  this  oath  of  voters,  without  at 
all  trenching  upon  the  decision  of  the  Supreme  Court. 

“Each  of  the  States  of  the  Union  have  hitherto 
regulated  suffrage  within  their  own  limits  for  them¬ 
selves,  and  in  such  manner  as  the  people  of  the  State 
deemed  most  conducive  to  their  own  yiterests  and 
welfare.  Suffrage  is  a  political  right/or  privilege 
which  every  free  community  grants  to  such  number 
and  class  of  persons  as  it  deems  Attest  to  represent 
and  advance  tile  wants  and  interests  of  the  whole. 
No  State  grants  it  to  all  persons,  but  with  such  lim¬ 
itations  as  the  interests  of  all  and  the  interest  of  the 
State  require. 

“When  once,  granted  it  is  not  a  vested,  irrevoca¬ 
ble  right,  but  is  held  at  the  pleasure  of  the  power 
that  gave  it,  and  the  State  may,  by  a  change  of  its 
fundamental  law,  restrict  as  well  as  enlarge  it.  When, 
therefore,  the  State  of  Missouri,  in  changing  its  con¬ 
stitution.  saw  fit  to  declare  that  the  interests  of  the 
State  and  of  the  people  of  the  State  would  be  pro¬ 
moted  by  withholding  the  right  of  voting  from  all 
persons  who  could  not  take  the  prescribed  oaLh,  they 
exercised  no  greater  or  higher  power  than  exists  in 
every  htate. 

“  The  committee  do  not  feel  justified  in  entering 
into  any  enlarged  discussion  of  this  point  of  consti¬ 
tutional  law,  and  therefore  merely  state  the  facts 
and  their  conclusions  thereon.” 

Of  so  much  of  the  foregoing  theory  as  but 
correctly  assumes  that  “suffrage,”  “when 
once  granted ,”  “  is  held  at  the  pleasure  of  thb 
power,  that  gave  it,”  it  need,  of  course,  be 
not  further  alluded  to  than  as  the  indirect  con¬ 
currence  by  the  committee  in  the  impregnabil¬ 
ity  of  the  proposition  whereon  I  based  the  argu¬ 
ment,  awhile  ago,  that  the  unratified  disfran¬ 
chisements  here  in  controversy  had,  in  fact , 
no  other  sanctions  than  those  of  “ fraud  and 
force.”  As,  however,  “the* committee  have 
not  deemed  themselves  at  liberty  to  enter 


upon”  this  proposition  in  the  practical  sense 
in  which  1  have  had  the  honor  to  present  it,  I  | 
shall  make  no  further  allusion  to  the  proposition  j 
upon  which  they  dismiss  it  than  to  respectfully 
inquire,  .in  the  language  of  the  patriot  poet, 

“  What  constitutes  a  State  ?” 

and  denying,  as  he  would  have  done,  that  the 
infamy  by  which  alone  1  have  been  constrained  : 
to  appeal  to  you  as  a  contestant,  instead  of 
having  been  certified  to  you  as  a  peer,  was  ever 
legitimately  enacted  by  the 

“  High  minded  men”  *  *  *  who  "constitute  the  State,” 

pass  next  to  the  issue  upon  which  the  com¬ 
mittee  have  entered,  and  which  they  have  de¬ 
cided  against  me.  As  they  but  fairly  and  frankly 
admit  that  “if  such  disfranchisements  must  be 
regarded  as  established  for  the  purpose  o {pun¬ 
ishing  the  persons  thus  deprived  of  the  right  of 
voting,”  “they  comeentirely  within  the  reason¬ 
ing”  of  the  court  in  the  priests  case;  and  as  per¬ 
haps  no  one  will  deny  that  a  case  ‘  ‘  entirely  within 
the  reasoning'1  ’  of  an  adjudicated  case  mustulti- 
mately  be  similarly  adjudicated ,  there  would 
seem  to  be  devolved  upon  me  the  duty  alone 
of  so  combining  and  reciting  the  opinion  of  the 
court  as  to  demonstrate  that  it  did  regard  such 
disfranchisements  as  1  here  complain  of  as 
“  punishment” — and  that,  being  for  that  reason 
within  the  inhibitions  upon  the  sovereignty  of 
the  States,  to  which  they  each  and  all  assented 
by  coming  into  the  Union,  the  case  may  be  sub¬ 
stantially  regarded  as  res  adjudicati. 

As  substantially  the  same  points  which  are 
made  by  the  committee  in  this  case  seem  to 
have  been  made  by  the  counsel  for  Missouri 
in  that  case,  the  answer  to  them  may  be  read 
from  the  opinion  in  question,  as  follows  : 

“  Wc  admit  the  propositions  of  the  counsel  of  Mis¬ 
souri,  that  the  States  which  existed  previous  to  the 
adoption  of  the  F  ederal  Constitution  possessed  origin¬ 
ally  all  the  attributes  of  sovereignty  ;  that  they  still 
retain  those  attributes,  except  as  they  have  been  sur¬ 
rendered  by  the  formation  of  the  Constitution  and 
the  amendments  thereto:  that  the  new  States  upon 
their  admission  into  theUnion  became  invested  with 
equal  rights,  and  were  thereafter  subject  only  to  sim¬ 
ilar  restrictions,  and  that  among  the  rights  reserved 
to  the  States  is  the  right  of  each  State  to  determine 
the  qualifications  for  office,  and  the  conditions  upon 
which  its  citizens  may  exercise  their  various  callings 
and  pursuits  within  its  jurisdiction. 

“  These  are  general  propositions  and  involve  prin¬ 
ciples  of  the  highest  moment.  But  it  by  no  means 
follows  that,  under  the  form  of  creating  a  qualifica¬ 
tion  or  attaching  a  condition,  the  States  can  in  effect 
inflict  a  punishment  for  a  past  act  which  was  not 
punishable  at  the  time  it  was  committed.  The  ques¬ 
tion  is  not  as  to  the  existence  of  the  power  of  the 
State.over  matters  of  internal  police,  but  whether 
that  power  has  been  made  in  the  present  case  an 
instrument  for  the  infliction  of  punishment  against 
the  inhibition  of  the  Constitution.” 

A  little  further  on  the  court  continues  its 
reasoning  as  follows: 

“The  disabilities  created  by  the  constitution  of 
Missouri  must  be  regarded  as  penalties — they  con-  j 
stitute  punishment.  Wo  do  not  agree  with  the 
counsel  of  Missouri  that  ‘to  punish  one  is  to  deprive 
him  of  life,  liberty,  and  property,  and  that  to  take 
from  him  anything  less  than  these  is  no  punishment  j 
at  all.’  The  learned  counsel  does  not  use  these  j 
terms — life,  liberty,  and  property — as  comprehend-  ! 
;ng  every  right  known  to  the  law.  He  docs  not  . 
include  under  liberty  freedom  from  outrage  on  the  j 
feelings  as  well  as  restraints  on  the  person.  lie  does  j 


not  include  under  property  those  estates  which  one 
may  acquire  in  professions,  though  they  are  often 
the  source  of  the  highest  emoluments  and  honors. 
The  deprivation  of  any  rights,  civil  or  political,  pre¬ 
viously  enjoyed,  may  be  punishment,  the  circum¬ 
stances  attending  and  the  causes  of  the  deprivation 
determining  this  fact.” 

And  yet  a  little  further  on  they  continue  to 
reason  as  follows  : 

‘‘In  France,  deprivation  or  suspension  ofeivil  rights, 
or  of  some  of  them,  and  among  these  of  the  right  of 
voting,  of  eligibility  to  office,  of  taking  part  in  family 
councils,  of  being  guardian  or  trustee,  of  bearing 
arms,  and  of  teaching  or  being  employed  in  a  school 
or  seminary  of  learning,  are  punishments  prescribed 
by  her  code.  The  theory  upon  which  our  political 
institutions  rest  is,  that  all  men  havccertain  inalien¬ 
able  rights — that  among  these  are  life,  liberty,  and 
the  pursuit  of  happiness;  and  that  in  the  pursuit  of 
happiness  all  avocations,  all  honors,  all  positions  are 
alike  open  to  every  one,  and  that  in  the  protection 
of  these  rights  all  arc  equal  before  the  law.  Any 
deprivation  or  suspension  of  any  of  these  rights  for 
past  conduct  is  punishment,  and  can  be  in  no  other¬ 
wise  defined.  Punishment  not  being,  therefore,  re¬ 
stricted,  as  contended  by  counsel,  to  the  deprivation 
of  life,  liberty,  or  property,  but  also  embracing  de¬ 
privation  or  suspension  of  political  or  civil  rights, 
and,  tho  disabilities  prescribed  by  the  provisions  of 
the  Missouri  constitution  being  in  effect  punishment, 
we  proceed  to  consider  whether  there  is  any  inhibi¬ 
tion  in  the  Constitution  of  the  United  States  against 
their  enforcement.” 

Can  it  be  possible,  Mr.  Speaker,  that  the 
preachers  case  and  the  voters  case  were  disso¬ 
ciated  in  the  mind  of  the  court  when  rendering 
this  long-matured  opinion,  or  that  they  forebore 
on  that  occasion  to  redress  the  wrongs  I  here 
complain  of  by  their  judgment ,  as  well  as 
their  “reasoning,”  except  for  the  judicial  rea¬ 
son  that  the  voter  was  not  (in  legal  parlance) 
a  party  to  the  record  there,  whereas  he  is  the 
only  party  to  it  here?  Perhaps  I  ought  to  add, 
that  although  the  oath  was  the  same  in  the  voters 
case  as  in  that  of  the  priest  and  other  parties 
enumerated  in  the  general  reasoning  of  the 
court,  he  was  excluded  from  the  franchise 
under  a  different  section  of  the  Constitution 
from  the  one  under  which  the  priest  was  for¬ 
bidden  to  follow  his  previous  calling — and  this, 
to  the  professional  listener,  will  constitute  a 
sufficiently  satisfactory  explanation  why  the 
voters,  who  were  disfranchised  under  the  third 
section  of  the  Constitution,  were  not  more 
specifically  alluded  to  in  the  reasoning  of  the 
court  upon  the  ninth  section. 

Must  they  not  have  been,  however,  indisso¬ 
lubly  associated  in  the  mind  of  the  court,  when 
speaking  of  the  “deprivation  of  the  right  of 
voting”  in  France  as  a  “punishment  pre¬ 
scribed  by  her  code,  just  as  it  will  doubtless  be 
shown,  in  the  voting  case  now  before  the  court 
from  Missouri,  th-.t  it  is  punishable  by  the 
laws  of  that  State?  and  when  correcting  the 
counsel  for  Missouri  for  not  having  used  the 
terms  life,  liberty,  and  property,  as  compre¬ 
hending  “every  right  known  to  the  law,” 
including  “freedom  from  outrage  on  the 
feelings  as  well  as  restraints  on  the  person?” 
and  when  concluding  one  of  the  quotations 
I  have  made  from  their  reasoning,  with  words 
which  will  constitute  in  all  the  future  a  fund¬ 
amental  maxim  of  our  jurisprudence,  to  wit, 
that  “,the  deprivation  of  any  rights,  civil  or 
political,  previously  enjoyed ,  may  [as  in  this 
case]  he  punishment.”  Expecting  to  demon- 


strate  presently  that,  in  a  case  analogous,  the 
highest  historical  authority  is  in  but  natu¬ 
ral  accord  with  the  highest  judicial  authority, 
not  only  that  the  deprivation  of  the  political 
rights  in  contest  here  “ may  be”  punishment, 
but  that  they  are  punishments  of  the  most 
“  degrading”  character,  when  enacted  by  a 
“retrospective  penal  law,”  we  will  next  draw 
upon  the  opinion  of  the  court  as  to  the  scope 
and  severity  of  this  oath,  as  follows: 

“The  oath  thus  required  is  for  its  severity  with¬ 
out  anv  precedent  that  we  can  discover.  *In  the  first 
place  it  is  retrospective;  it  embraces  all  the  past 
from  this  day  ;  and  if  taken  years  hence  it  will  also 
cover  all  the  intervening  period.  In  its  retrospective 
feature  we  believe  it  is  peculiar  to  this  country.  In 
England  and  France  there  have  been  test-oaths,  but 
they  were  always  limited  to  an  affirmation  of  present 
belief  or  present  disposition  toward  the  Government, 
and  were  never  exacted  with  reference  to  particular 
instances  of  past  misonduct.  In  the  second  place, 
the  oath  is  directed  not  merely  against  overt  and  vis¬ 
ible  acts  of  hostility  to  the  Government,  but  it  is 
intended  to  reach  words,  desires,  and  sympathies  also. 
And,  in  the  third  place,  it  allows  no  distinction  be¬ 
tween  acts  springing  from  malignant  enmity  and  acts 
which  may  have  been  prompted  by  charity  or  affec¬ 
tion  or  relationship.” 

It  is  trusted  no  member  of  the  House  will 
fail  to  recall  in  this  connection  the  practical 
construction  or  administration  of  this  oath  by 
the  registerial  partisans  of  the  contestee,  Avho 
rejected  twenty-eight  hundred  and  thirty-five 
of  my  supporters  who  had  taken  it  in  the  sense, 
doubtless,  that  they  had  not  disloyally  sym¬ 
pathized  with  the  southern  people,  and  who 
were  rejected  in  the  probable  proportion  of 
eleven  twelfths  of  the  whole  simply  because 
their  names  were  copied  and  certified  from  the 
military  list  of  “sympathizers”  to  which  so 
many  were  driven  or  forced  in  1862.  But  I 
am  possibly  bordering  on  a  digression  from  the 
issue  now  under  discussion,  and  will  hence 
return  to  the  opinion  of  the  court  for  the  rea¬ 
sons  upon  which  they  decided  that  the  require- 
mentsof  the  Missouri  constitution  were,  in  this 
regard,  inhibited  by  the  Constitution  of  the 
United  States.  The  court  says  : 

“The  counsel  for  Missouri  closed  his  argument  in 
this  case  by  presenting  astriking  picture  of  thestrug- 
gle  for  ascendency  in  that  State  during  the  recent 
rebellion  between  the  friends  and  the  enemies  of  the 
Union,  and  of  the  fierce  passions  which  that  struggle 
aroused.  It  was  in  the  midst  of  the  struggle  that  the 
present  constitution  was  framed,  although  it  was  not 
adopted  by  the  people  until  the  war  had  closed.  It 
would  have  been  strange,  therefore,  bad  it  not  ex¬ 
hibited  in  its  provisions  some  traces  of  the  excite¬ 
ment  amid  which  the  convention  held  its  delibera¬ 
tions.” 

“It  was  against  the  excited  action  of  the  States 
under  such  influences  as  these  that  the  framers  of 
the  Federal  Constitution  intended  to  guard.  In 
Fletcher  vv.  Peck,  (6  Cranch,  137,)  Mr.  Chief  Justice 
Marshall,  speaking  of  such  action,  uses  this  lan¬ 
guage:  ‘  Whatever  respect  might  have  been  felt  for 
the  State  sovereignties  it  is  not  to  be  disguised  that 
the  framers  of  the  Constitution  viewed  with  some 
apprehension  the  violent  acts  which  might  grow  out 
of  the  feelings  of  the  moment;  and  that  the  people 
of  the  United  States,  in  adopting  that  instrument, 
have  manifested  a  determination  to  shield  them¬ 
selves  and  their  property  from  the  effects  of  those 
sudden  and  strong  passions  to  which  men  are  ex¬ 
posed.  The  restrictions  on  the  legislative  power  of 
the  States  are  obviously  founded  in  this  sentiment; 
and  the  Constitution  of  the  United  States  contains 
what  may  be  deemed  a  bill  of  rights  for  the  people 
of  each  State.’ 

“ ‘  No  State  shall  pass  any  bill  of  attainder,  ex  post 


facto  law,  or  law  impairing  the  obligation  of  con¬ 
tracts.’” 

It  was  to  this  prohibition — this  “bill  of 
rights  for  the  people  of  each  State  ” — that  the 
remainder  of  the  reasoning  of  - the  court  was 
directed  ;  and  I  know  not  how  better  to  con¬ 
clude  the  extracts  to  which  my  time  and 
strength  alike  restrict  me,  than  by  reading  from 
the  examples  they  have  hypothesized  in  their 
argument,  a  prescient  and  all-embracing 
illustration  of  the  propriety  and  sanctity  of 
these  constitutional  inhibitions,  as  follows: 

“Take  still  another  case:  suppose  that  in  the  prog¬ 
ress  of  events  persons  now  in  tho  minority  in  the 
State  should  obtain  the  ascendency  and  secure  the 
control  of  the  government;  nothing  could  prevent, 
if  this  constitutional  prohibition  can  be  evaded,  the 
enactment  of  a  provision  requiring  every  person,  as 
a  condition  of  holding  any  position  of  honor  or  trust 
or  of  pursuing  any  avocation  in  the  State,  to  take  an 
oath  that  he  had  never  advocated  or  advised  or  sup¬ 
ported  the  imposition  of  the  present  expurgatory 
oath.  Under  this  form  of  legislation  the  most  fla¬ 
grant  invasion  of  private  rights,  in  periods  of  excite¬ 
ment,  may  be  enapted,  and  individuals  and  even 
whole  classes  may  be  deprived  of  political  and  civil 
rights.” 

Deeming  it  unnecessary  to  read  the  concur¬ 
rent  deprecatory  reasoning  of  Judge  Holmes, 
who  recently  delivered  the  opinion  of  the  de 
facto  court  in  Missouri,  in  an  analogous  case 
at  St.  Louis,  but  nevertheless  congratulating 
the  House  and  the  country  upon  the  ultimate 
acquiescence  thus  significantly  foreshadowed, 
the  considerations  I  have  deferentially  submit¬ 
ted  for  at  least  “vacating”  the  seat  in  contro¬ 
versy  will  be  concluded  by  the  historical  refer¬ 
ence  to  which  allusion  has  been  made,  and 
which  I  but  substantially  reproduce  from  the 
argument  of  a  professional  friend  in  the  Blair 
case  at  St.  Louis,  now  pending  before  the 
Supreme  Court  here,  as  follows: 

During  the  reign  of  Charles  II  proceedings 
were  set  on  foot  to  forfeit  the  charters  of  most 
of  the  principal  cities  and  towns  of  England. 
The  privileges  and  immunities  enjoyed  by 
those  who  were  freemen  of  a  city  or  borough 
were  a  great  obstacle  to  the  designs  enter¬ 
tained  at  that  period  by  the  court  party.  It 
was  felt  that  an  immense  advantage  would  be 
gained  if  the  charters  of  the  municipalities 
could  be  forfeited.  With  a  view  to  this  the 
Crown,  by  virtue  of  the  power  then  held  by  it 
of  displacing  any  judge  at  pleasure  and  ap¬ 
pointing  his  successor,  purged  the  bench  of 
every  judge  who  from  his  learning  and  integ¬ 
rity  was  supposed  not  to  be  likely  to  prove  a 
tool  of  arbitrary  power;  and  then  writs  of  quo 
warranto  were  issued  against  the  several,  cor¬ 
porations.  But  in  England,  in  the  worst  of 
times,  there  has  been  some  reverence  for  law, 
and  some  hesitation  to  commit  open  outrages 
upon  it.  So  soon  as  the  actions  were  begun 
the  creatures  of  the  Crown  began  to  approach 
the  municipal  magistrates,  and  advise  them  to 
surrender  their  charters  without  a  trial  to  the 
Crown,  trusting  to  the  clemency  of  the  king 
to  grant  them  new  charters^  not  so  favorable, 
indeed,  as  the  old,  but  far  better  than  could  be 
looked  for  if  formal  judgment  of  ouster  were 
passed  against  them.  This  was  the  form  of 
the  solicitation.  Both  the  monarch  and  his 


supple  instruments,  the  judges,  had  a  whole¬ 
some  dread  of  the  possible  consequences  that 
might  ensue  to  them  both  in  case  of  a  popular 
reaction  such  as  had  led  to  the  Long  Parlia¬ 
ment,  and  they  had  no  such  disposition  to 
push  matters  to  extremities  if  it  was  possible 
to  avoid  that  necessity  by  a  compromise.  Most 
of  the  corporations  were  persuaded  to  surren¬ 
der  their  charters  for  fear  of  encountering  still 
worse  evils.  Of  course  there  were  on  this  sub¬ 
ject  in  each  borough  two  parties  ;  one  of  them 
in  favor  of  surrendering  the  charters  (these 
were  mostly  friends  of  the  prerogative,  or 
Tories,)  and  the  other  opposed  to  this  policy, 
mainly  composed  of  Whigs.  These  things 
were  done  between  1G83  and  1G86. 

In  1688  occurred  the  revolution  that  drove 
the  Stuart  dynasty  from  the  throne  of  Great 
Britain.  The  first  Parliament  which  assembled 
under  the  new  monarch  betook  itself  to  the  task 
of  redressing  some  of  the  more  heinous  wrongs 
of  the  preceding  reigns.  In  this  Parliament 
the  Whigs  had  a  majority.  In  an  evil  hour 
some  of  that  party  bethought  themselves  of  a 
scheme,  the  accomplishment  of  which  would, 
they  thought,  secure  to  the  Whigs  a  permanent 
tenure  of  political  power.  They  resolved  to 
seize  the  occasion  of  the  corporation  bill  for 
effecting  this  object.  The  narrative  of  the 
heated  party  strife  of  the  seventeenth  century, 
with  the  comment  of  the  historian  alluded  to, 
may  be  read  in  the  third  volume  of  Macaulay’s 
History  of  England,  at  pages  398-401,  as  fol¬ 
lows: 

“A  bill  for  restoring  the  rights  of  those  corpora¬ 
tions  which, duringthe  reign  of  Charles  Hand  James 
II,  had  surrendered  their  charter  to  the  Crown,  had 
been  brought  into  the  House  of  Commons,  read  twice, 
and  referred  to  a  committee  of  which  Somers  was 
chairman.  lie  reported  the  bill  to  the  House  on  Jan¬ 
uary  2d,  1090.  Most  of  the  Tory  members  were  then 
absent,  keeping  Christmas  at  their  homes.  The 
Whigs,  being  in  the  secret,  were  present  in  great 
numbers.  The  moment  the  bill  was  read,  Sachove- 
rell,  who  had  been  an  energetic  exclusionist  in  the 
time  of  Charles  II,  moved  a  clause  that  every  muni¬ 
cipal  functionary  who  had  in  any  manner  been  a 
party  to  surrendering  the  charter  of  any  borough  to 
the  Crown,  should  be  for  seven  years  incapable  of 
holding  any  office  in  that  borough.  The  charter  of 
nearly  every  corporate  town  in  England  had  been 
remodeled  during  the  ‘  hot  fit  of  loyalty’  which  fol¬ 
lowed  the  detection  of  the  Rye  House  plot,  and  in 
almost  every  borough  the  voice  of  the  Tories  had 
boon  for  surrendering  the  charter  and  trusting  to  the 
paternal  care  of  the  king.”  The  effect  of  Sache- 
verell’s  clause  was  thus  to  make  some  thousands  of 
the  most  opulent  and  highly-considered  men  of  the 
kingdom  incapable,  for  seven  years,  of  bearing  any 
part  in  the  government  of  the  places  where  they  re¬ 
sided,  and  to  secure  to  the  Whig  party  for  seven  years 
an  overwhelming  influence  in  borough  elections. 

“The  minority  exclaimed  against  the  gross  injus¬ 
tice  of  passing  rapidly  and  by  surprise,  at  a  season 
when  London  was  empty,  a  law  which  retrospectively 
inflicted  a  severe  penalty  on  many  hundred  respecta¬ 
ble  gentlemen;  a  law  which  would  call  forth  the 
strongest  passions  in  every  town  from  Berwick  to  St. 
Ives  ;  a  law  which  must  have  a  serious  effect  on  the 
composition  of  the  House  itself.  Common  decency 
required  at  least  an  adjournment.  An  adjournment 
was  moved,  but  the  motion  was  rejected  by  127  to  89. 
The  question  was  then  put  that  Sacheverell’s  clause 
should  stand  as  part  of  the  bill,  and  was  carried  by 
133  to  68.  Sir  Robert  Howard  immediately  moved 
that  every  person  who,  being  under  SachcvereH’s 
clause  disqualified  for  municipal  office,  should  pre¬ 
sume  to  take  any  such  office  should  forfeit  £500  and 
be  for  life  incapable  of  holding  any  public  employ¬ 
ment  whatever.  The  Tories  did  not  venture  to 


divide.”  *  *  *  *  "  It  was  immediately 

resolved  that  the  bill,  enlarged  by  Sacheverell’s  and 
Howard’s  clauses,  should  be  engrossed.  The  most 
vehement  Whigs  were  bent  on  finally  passing  it  within 
forty-eight  hours.  The  Lords,  indeed,  were  not  likely 
to  regard  it  very  favorably.  But  it  would  seem  there 
(wcre  some  desperate  men  prepared  to  withhold  the 
supplies  and  thus  to  place  the  Upper  House  under 
the  necessity  of  either  consenting  to  a  vast  proscrip¬ 
tion  of  the  Tories  or  refusing  to  the  Government  the 
means  of  carrying  on  the  war.  There  were  Whigs, 
however,  honestenough  to  wish  that  fair  playshould 
be  given  to  the  hostile  party,  and  prudent  enough  to 
know  that  an  advantage  obtained  by  violence  and 
cunning  could  not  be  permanent.  These  men  insisted 
that  at  least  a  week  should  be  suffered  lo  elapse 
before  the  third  reading,  and  carried  their  point. 
Their  less  scrupulous  associates  complained  bitterly 
that  the  good  cause  was  betrayed.” 

*  *  “As  a  postponement  of  a  few  days  appeared, 

however,  to  bo  inevitable,  those  who  had  intended 
to  gain  the  day.  by  stealing  a  march  now  disclaimed 
that  intention.”  *  *  *  *  “The  mails 

had  carried  out  along  all  the  high  roads  the 
tidings  that  on  tho  2d  of  January  the  Commons 
had  agreed  to  a  retrospective  penal  law  against 
the  whole  Tory  party,  and  that  on  the  tenth  that 
law  would  be  considered  for  the  last  time.  The 
whole  kingdom  was  moved  from  Northumberland  to 
Cornwall.”  *  *  *  *  “Assuredly,  no  rea¬ 

sonable  man  of  any  party  will  deny  that  the  Tories, 
in  surrendering  to  the  Crown  all  the  municipal  fran¬ 
chises  of  the  realm,  and  with  these  franchises  the 
power  of  altering  the  constitution  of  the  House  of 
Commons,  committed  a  great  fault.  But  in  that  fault 
the  nation  itself  had  been  an  accomplice.  If  the 
mayors  and  aldermen  whom  it  was  now  proposed  to 
punish  had,  when  the  tide  of  loyal  enthusiasm  ran 
high,  sturdily  refused  to  comply  with  the  wish  of 
their  sovereign,  they  would  have  been  pointed  out 
in  the  street  as  Roundhead  knaves,  preached  at  by 
rector,  lampooned  in  ballads,  and  probably  burned 
in  effigy  before  their  own  doors.  That  a  community 
should  be  hurried  into  errors,  alternately  by  fear  of 
tyranny  and  by  fear  of  anarchy,  is  doubtless  a  great 
evil;  but  the  remedy  for  that  evil  is  not  to  punish 
for  such  errors  some  persons  who  have  merely  erred 
with  the  rest  and  who  have  since  repented  with  tho 
rest.  Nor  ought  it  to  bo  forgotten  that  the  offenders 
against  whom  iSachevcrell’s  clause  was  directed  had 
in  1688  made  large  atonement  for  the  misconduct  of 
which  they  had  been  guilty  in  1683.  They  had  as  a 
class  stood  up  firmly  against  the  dispensing  power, 
and  most  of  them  had  actually  been  turned  out  of 
their  municipal  offices  by  James  for  refusing  to  sup¬ 
port  his  policy.  It  is  not  strange,  therefore,  that  the 
attempt  to  inflict  on  all  these  men.  without  excep¬ 
tion,  a  degrading  punishment,  should  have  raised 
such  a  storm  of  public  indignation  as  many  Whig 
members  of  Parliament  were  unable  to  face.” 

Need  more  be  added,  Mr.  Speaker,  whether 
in  indignant  reprehension  of  the  past,  or 
respectful  premonition  of  the  future?  The 
historian  of  England — the  Whig  who  quitted 
her  Parliament  to  write  her  history — has  want- 
ten  of  the  measure  proposed  by  his  party,  but 
•  not  finally  carried,  what  the  court  of  last  resort 
has  substantially  written  of  the  enactment  here 
in  controversy — that  it“  retrospectively  inflicts 
a  severe  penalty,”  that  it  was  (or  would  have 
been)  “a  retrospective  penal  law,”  and  that 
it  was  an  attempt  “to  inflict  upon”  a  certain 
class  of  people,  without  exception,  (there  as 
here,)  “a  degrading  punishment .” 

Recurring  hence  to  the  concession  of  the 
committee,  that  “if  such  disfranchisements 
must  be  regarded  as  punishment,”  this  case  is 
but  necessarily  within  the  reasoning  of  the 
court  in  the  opinion  so  often  quoted  from,  may 
!  I  not  respectfully  demand  your  “ judgment  ” 

I  accordingly  ?  Not  only  upon  the  concurrence 
of  the  highest  judicial  and  historic  authority, 
whereby  it  has  been  shown  that  these  ex  post 
facto  disfranchisements  are  to  he  regarded  as 


“  punishments,”  but  upon  that  other  and  like 
fundamental  concession  of  the  committee,  that 
“  suffrage”  “once  granted”  “is  held  at  the 
pleasure  of  the  power  that  gave  it ,”  is  that 
“judgment”  deferentially  anticipated  in  the 
decision  you  are  now  soon  to  render.  And 
what  has  the  contestee  opposed  to  all  this,  or 
what  can  he  oppose  why  your  judgment  should 
not  be  thus  rendered?  Is  it  too  much  to  suggest 
that  it  will  be  simply  such  sinuous  and  sinister 
prejudices  and  such  implacable  resentments  as 
have  been  fostered  and  fulminated  against  the 
“thousands”  who  once  mistook  their  true  loy¬ 
alty,  as  every  member  of  the  Legislature  did, 
and  the  most  earnest  of  whom,  in  the  language 
of  Macaulay,  having  “merely  erred  with  the 
rest  and  since  repented  with  the  rest,”  should 
but  equitably  and  naturally  be  forgiven  with 
the  rest.  Concerning  such  citizens  1  have  here 
a  deposition  from  one  of  the  counties  which 
may  safely  enough  be  relied  upon  as  denoting 
at  least  the  present  and  future  loyalty  of  those 
who  either  “  could  not  or  would  not  take  the 
retrospective  part”  of  this  unconstitutional 
“test-oath,”  and  with  the  reading  of  the  most 
pertinent  portions  of  which  I  shall  be  prepared 
to  submit  to  the  decision  of  the  House  the  case 
of  a  long  wronged  and  an  outraged  constitu¬ 
ency.  At  pages  42  and  43  Robert  P.  C.  Wil¬ 
son  swears  as  follows: 

“  I  am  a  lawyer  by  profession  and  have  resided  in 
Platte  county.  Missouri,  for  a  number  of  years,  in 
fact  was  partially  raised  here;  am  well  acquainted 
with  the  people  of  the  county  generally,  and  was  so 
acquainted  at  the  general  election  of  1866;  was  reg¬ 
istered  at  said  election  as  a  qualified  voter.  Believ¬ 
ing  that  a  portion  of  what  was  called  the  Missouri 
test-oath,  and  which  oath  was  administered  to  voters 
at  the  general  election  indicated,  was  unconstitu¬ 
tional,  I  advised  the  people  of  the  fact  that  at  Platte 
City  I  would  receive  and  preserve  the  ballots  of  all 
persons  otherwise  qualified,  but  who  could  or  would 
not  take  the  retrospective  part  of  said  oath  and 
would  take  the  prospective  portion  of  the  same.  On 
the  election  day,  the  6th  of  November,  1866,  I  was 
present  at  the  polls  and  did  receive  and  preserve  the 
ballots  of  about  one  hundred — I  think  it  was  exactly 
one  hundred  ballots — of  the  kind  indicated  above. 
Before  receiving  a  ballot  of  any  person — in  fact,  all 
the  persons  who  deposited  their  ballots  with  me  at 
the  Platte  City  polls  went  before  a  justice  of  the 
peace  of  the  county  and  took  and  subscribed  the 
prospective  part  of  said  test-oath,  stamping  and  can¬ 
celing  the  stamp  on  same;  then,  with  the  oath 
annexed  to  their  tickets,  presented  themselves  to  the 
judges  of  election  and  demanded  the  privilege  of 
voting,  which  privilege  was  uniformly  denied  them. 
The  ballots  of  all  such  were  preserved  by  me,  and 
I  believe  without  exception  were  in  favor  of  Judge 
Birch  for  Congress.  I  think  all  these  persons  were 
residents  of  the  election  district  in  which  they 
offered  to  vote,  and  had  it  not  been  for  the  enforce¬ 
ment  of  the  ex  post  facto  part  of  said  oath  I  believe 
they  each  and  all  would  have  been  entitled  to  vote 
and  would  have  been  duly  registered,”  &c.  *  * 

*  *  ”  The  votes,  or  rather  the  one  hundred  bal¬ 

lots  preserved  by  me  and  mentioned  above,  were  not 
included  in  any  official  count  made.” 

They  have  hence  been  included  in  no  nu¬ 
merical  aggregate,  either  of  the  committee  or 
rnyself,  but  are  you  prepared  to  decide  against 
tiie  oath  of  these  men,  and  the  prospective  alle¬ 
giance  they  pledge  to  the  Government,  that 
they,  too,  are  not  “loyal  citizens,”  for  whom 


it  was  the  duty  of  the  convention,  under  the 
limitation  of  the  organic  act  of  their  exist?* 
ence,  and  in  view  of  the  inhibitions  of  the  Fed¬ 
eral  Constitution  as  to  any  other  oath  than  the 
one  they  took ,  to  “preserve  in  purity  the  elective 
franchise?”  And  what  message  shall  I  send 
or  carry  to  this  class  of  men,  the  conduct  of 
many  of  whom,  to  again  repeat  the  language 
of  the  court,  was  “not  even  blameworthy,” 
and  who.  upon  the  correlatives  of  “allegiance 
and  protection,”  so  ably  enforced  during  the 
morning  by  the  gentleman  from  Indiana,  [Mr. 
Orth,]  are  but  naturally  entitled  to  “the 
protection  of  the  ballot?”  Shall  I  message 
them  by  telegram,  to-night,  that  the  legisla¬ 
tive  department  of  their  Government  peace¬ 
fully  and  “loyally”  acquiesces  in  the  “rea¬ 
soning”  of  the  judicial  department?  or  must 
it  be  that  I  shall  have  to  carry  to  their  fire¬ 
sides  and  their  public  assemblies  the  ungenial 
and  unwelcome  foreshadowing,  that  upon  such 
a  popular  upheaving  or  revolution  in  this 
country  as  reduced  the  British  Whigs  to  a 
minority  in  the  Parliament  which  succeeded 
their  but  menaced  disfranchisements,  can  they 
alone  rely  for  their  disenthrallment  from  an 
unconstitutional  and  “a  degrading  punish¬ 
ment?”  Let  it  suffice  to  add,  sir,  if  aught  of 
human  reason  or  of  the  most  eminent  author¬ 
ities  can  suffice,  that  having  brought  to  my  aid 
the  concurrences  of  history  and  of  law  upon 
the  point  wherein  it  is  my  misfortune  to 
disagree  with  so  respectable  and  respected  a 
tribunal  as  the  Committee  of  Elections,  the 
decision  between  us  must  but  naturally  go  to 
the  House,  and  anon  to  the  country  from  whom 
we  all  derive  whatever  of  legitimate  authority 
we  may  exercise  here.  To  that  House,  which 
has  so  long  and  so  patiently  listened  to  rpe,  as 
its  committee  had  previously  done,  there  re¬ 
mains  to  me,  in  conclusion,  but  the  agreeable 
duty  of  committing  the  case  of  my  constituents 
to  their  joint  and  final  decision;  and  of  return¬ 
ing  to  its  members,  and  to  you,  Mr.  Speaker, 
my  most  appreciative  acknowledgments,  and 
my  most  sincere  and  respectful  thanks. 


Note  by  Mr.  B.,  January  10. — I  regret  tfc 
find  that  there  will  not  be  room  for  the  extracts 
I  had  brought  together  from  the  remarks  of 
Mr.  Kerr,  of  Indiana,  in  respect  to  the  “great, 
if  not  insurmountable,”  impediments  which 
were  thrown  in  the  way  of  obtaining  such  testi¬ 
mony  as  the  committee  refer  to  ;  and  that  I  am 
limited  to  the  closing  sentence  of  the  speech 
of  that  gentleman,  as  follows: 

‘‘I  agree  with  the  learned  gentleman  from  Penn¬ 
sylvania,  [Mr.  'Woodward,]  for  whose  judgment  I 
entertain  profound  respect,  that  that  exercise  of 
power  on  the  part  of  that  constitutional  convention 
was.  utterly  unauthorized,  was  illegal,  was  unconsti¬ 
tutional.  In  my  judgment  it  was  most  infamous,  and 
in  reference  to  the  institutions  of  that  State  itwas 
revolutionary.  It  was  adishonorwhich  throws  shame 
upon  the  State  of  Missouri  to  this  day,  and  will  con¬ 
tinue  to  do  so  untii  that  infamous  provision  in  that 
constitution  is  expunged,  as  it  will  be,  as  certain  as 
God  rules,  in  the  early  future  of  this  country.” 


Printed  at  the  Congressional  Globe  Office. 


